Oberster Gerichtshof, Beschluss vom 22/12/2010 9 Ob 18/10b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0090OB00018.10B.1222.000
Date: 2010-12-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT1222(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff company sued the two defendants, who were resident in Germany, before an Austrian court for a declaration that a certain vehicle was the plaintiff’s property. Furthermore, the plaintiff sought a declaration that a sales contract concerning this vehicle was fake, because the signature on the contract did not match that of the plaintiff. The court dismissed the action for lack of international jurisdiction, which was confirmed on appeal. The plaintiff lodged an appeal to the Austrian OGH.
The OGH first considers whether the case concerns an action in tort within the meaning of Article 5(3) of the Brussels I Regulation. This is the case if an action seeks to establish the liability of a defendant and is not related to a contract within the meaning of Article 5(1). Although the plaintiff has accused the first defendant of fraud, it did not bring any claims against the defendants on this basis and, in particular, did not seek damages. Instead, the plaintiff’s action is limited to seeking a declaration of its ownership. Also, the application for a declaration that the sales contract is fake solely concerns a question of fact, namely, whether the document in fact originated from the person designated as the issuer. However, claims in tort have not been brought in this case. The alleged fraud is not the subject of the requested declarations. The international jurisdiction of the Austrian courts also cannot be based upon Article 5(1). Although this forum includes the question of whether a contract has been concluded, the declaratory interest of the plaintiff is not aimed towards this. The plaintiff’s action does not seek to determine whether a legal relationship to the defendants exists or not. In addition to the declaration of the property rights of the plaintiff, it is only concerned with the lack of authenticity of the document.