Oberster Gerichtshof, Urteil vom 10/03/2008 10 Ob 113/07a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0123216
Date: 2008-03-10
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0310(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff having its seat in Austria was commissioned to construct a building in Germany. It assigned the defendant, a company having its seat in Germany, with the construction of the roof. The plaintiff asserted claims for warranty. At first, it commenced proceedings before a German court. The court dismissed the action by summary judgment, as the parties had concluded a jurisdiction agreement in favour of the courts at the plaintiff's seat in Austria. Thus, the plaintiff commenced proceedings before the Austrian court at its seat. The defendant objected that the action was time-barred. The action was dismissed in first instance as well as on appeal due to the prescription of the claims for warranty. The courts held that the action before the German court did not interrupt the period of prescription. The plaintiff appealed to the OGH (AT).
The OGH (AT) allows the appeal and remands the case to the court of first instance. It holds that pursuant to both parties, the dispute has to be determined according to Austrian law. Accordingly, an action brought before a court lacking jurisdiction can lead to an interruption of the period of prescription where that court refers the proceedings to the competent court. However, in cross-border proceedings such a reference is not possible. Nevertheless, this is not the only element to be considered. It is rather relevant whether the plaintiff pursues his procedural objectives with the necessary seriousness. The system of the Brussels I Regulation which in Articles 27-30 aims at the avoidance of parallel proceedings, is not always unambiguous as to equate an action brought before a court lacking jurisdiction with an infringement of procedural diligence by the plaintiff. Thus, also an action brought before the court of another Member State of the EU is apt to interrupt a prescription period, provided that the court seised does not obviously lack jurisdiction.