Oberster Gerichtshof; 2014-10-06; S. K., T. K., A. K., A. K., S. T., A. T., Z. T.; R. A.; 9 Ob 70/14f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0090OB00070.14F.1006.000
Date: 2014-10-06
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT1006(51)_ENG_SUMJURE
JURE summary
JURE summary
Seven natural persons (the “plaintiffs”) sought damages (maintenance, mental harm, declaratory action) from a natural person (the “defendant”) claiming that the defendant had kidnapped and abducted their husbands or fathers in Kazakhstan.
The invoked Austrian court’s jurisdiction was justified with the defendant’s ordinary residence in the court’s district. After attempts to deliver the notice of petition had revealed that the defendant did not reside at the address, ultimately an in-absentia representative was appointed on the defendant’s behalf according to the Austrian Code of civil procedure.
The in-absentia representative filed a defence requesting the action’s dismissal.
Then the defendant announced to have granted power of attorney to the representing law firm in the dispute with the plaintiffs. Additionally, he objected to the Austrian court’s international jurisdiction. The relevant facts had occurred in Kazakhstan and the lack of jurisdiction had not been cured by the in-absentia representative’s entering the appearance.
The Court of First Instance (Regional court for Civil Law Matters Vienna) declared itself to not have jurisdiction and rejected the action. The in-absentia representative’s defence did not establish entering the appearance in the meaning of Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation").
The Court of Appeals (Oberlandesgericht Wien) followed the plaintiffs’ appeal and dismissed the objection of lack of international jurisdiction. The jurisdiction of the Court of First Instance was justified through the in-absentia representative’s entering the appearance under Article 24 of the Brussels I Regulation.
The defendant’s appeal against the decision of the Court of Appeals is permissible. Among other arguments, the defendant reasoned that he had his residence in Malta already in the time that the plaintiffs brought the action.
In particular, the Supreme Court of Justice (the “Supreme court”) had to answer to what extent the in-absentia representative’s entering the appearance before the Court of First Instance that had no international jurisdiction is attributed to the defendant. Is Article 24 of the Brussels I Regulation to be interpreted in a way that within the meaning of its provisions, entering the appearance is established only if the defendant himself or a legal representative authorized by himself used the corresponding procedural measure or in a way that its provisions apply without restriction, even if an in-absentia representative was ordered by law of the respective Member State?
The Court of Justice of the European Union answered the Supreme Court’s questions in a preliminary ruling (see decision C-112/13 from 11.09.2014). A in-absentia representative’s appointment on the defendant’s behalf in accordance with domestic law does not constitute the defendant entering the appearance in the meaning of Article 24 of the Brussels I Regulation, which justifies the domestic court’s international jurisdiction.
The Supreme Court followed the defendant’s appeal amending the appeals court’s decision to restore the decision of the Court of First Instance.