Oberster Gerichtshof; 2014-12-18; I.; L.; 2 Ob 217/14x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0020OB00217.14X.1218.000
Date: 2014-12-18
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT1218(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian plaintiff (the “plaintiff”) sought payment of open claims of the defendant based in Germany (the “defendant”). The jurisdiction of the Bezirksgericht für Handelssachen Wien, which issued a European order for payment, should be given by a jurisdiction clause.
After the defendant’s objection, the plaintiff called for the Landesgericht Steyr as having jurisdiction according to the jurisdiction agreement. The defendant raised lack of international jurisdiction as defence. She had never agreed to a jurisdiction agreement with the plaintiff. On the same day, the defendant applied for an amicable delegation to the Handelsgericht Wien upholding the lack of international jurisdiction as defence. The plaintiff could not produce the jurisdiction agreement with the defendant.
The Court of First Instance (Handelsgericht Wien) rejected the lack of international jurisdiction. The delegation request in accordance with Article 31(a) of the Austrian Jurisdiktionsnorm (“JN”) was to be viewed as a jurisdiction agreement according to Article 23(1) of the 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”), in the version valid until 09.01.2015.
The Court of Appeal (Oberlandesgericht Wien) amended the decision to reject the motion due to lack of international jurisdiction. An effective jurisdiction agreement requires an actual, consistent declaration of the parties’ intent, which must be expressed clearly and unambiguously according to the case law of the Court of Justice of the European Union (“CJEU”).
A jurisdiction of the Handelsgericht Wien was not established by the defendant's simultaneous transmission of the defence of lack of international jurisdiction with the delegation request. Thus, the delegation is not regarded as jurisdiction agreement under Article 23 of the Brussels I Regulation. However, in the meaning of Article 31 of JN, parties may choose which court will decide the contentious question of international jurisdiction.
In the decision, the Oberster Gerichtshof (“OGH”) leads that the plaintiff’s appeal is not permissible due to lack of existence of a substantial question of law.
According to the CJEU’s case law, the jurisdiction agreement is to be created so autonomously that a matching declaration of the parties’ intents on the reasoning for the stipulation of jurisdiction must be expressed clearly and unambiguously.
The parties can also tacitly conclude a jurisdiction agreement.
In the present case, during the procedure, the defendant has constantly maintained its objection of the Austrian courts’ international jurisdiction. The Court of Appeal has judged correctly that, by the delegation request, the defendant will negotiate only its defence before the Handelsgericht Wien.
The plaintiff has not produced any other agreements on the place of jurisdiction. Therefore, there is no jurisdiction agreement within the meaning of Article 23 of the Brussels I Regulation.
The OGH dismissed the plaintiff’s appeal on points of law.