Oberster Gerichtshof, Urteil vom 01/07/2004 2 Ob 157/04h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0020OB00157.04H.0701.000
Date: 2004-07-01
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT0701(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is the Austrian federal railway (ÖBB). The defendant, seated in the Czech Republic, is the dispatcher of a commodity, which shifted in a railroad car in an Austrian train station and thus caused an accident. The plaintiff requires from the defendant, who is held responsible for the unsatisfactory protection of the charge, compensation for the damage caused in the accident. The plaintiff claims the competence of the Austrian courts, as the place where the damage occurred. The court of first instance (AT) declared itself incompetent, because according to national law, only the place where the harmful event occurred is relevant. The appellate court however, affirms the jurisdiction, since the jurisdiction of the ECJ regarding Article 5(3) Brussels Convention / Brussels I Regulation is to be considered when determining the national competence, and thus jurisdiction is also founded at the place where the damage occurred.
The OGH (AT) holds that neither the Brussels Convention, nor the Brussels I Regulation, nor the Lugano Convention is applicable, since at the time when the claim was raised, the Czech Republic was not a Contracting respectively Member State. An analogous application of the legal instruments mentioned is not possible, since a regulatory gap does not exist. An interpretation of the national competence rule in the light of those legal instruments may be appropriate, however in this case the Austrian legislator clearly excluded the competence at the place where the damage occurred, so that there is no room left for interpretations. Therefore the court at the place where the damage occurred is not competent.