Oberster Gerichtshof, Beschluß vom 02/02/2005 9 Ob 95/04t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0119724
Date: 2005-02-02
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82005AT0202(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff brought an action against the first and second defendants for payment before the Bezirksgericht of Bezau (AT), at the seat of the first defendant. Before institution of those proceedings, the first defendant was declared bankrupt, and the court therefore dismissed the action against it for inadmissibility due to bankruptcy. The second defendant challenged the jurisdiction of the court seised. It asserted that as the action against the first defendant had been dismissed, the action against it could no longer be brought before that court according to Article 6(1) Brussels I Regulation. Furthermore, it alleged that in bringing proceedings before that court, the plaintiff had attempted to deprive the second defendant of the jurisdiction of the court at its seat.
The OGH (AT) holds that, as is the case with Article 6(2) Brussels I Regulation, it also must be examined in the context of Article 6(1) whether an action was only brought in order to deprive the defendant of the court having jurisdiction at his domicile. The court finds that, in this case, the institution of proceedings does not infringe that prohibition on abuse as it cannot be ascertained whether the plaintiff already knew about the bankruptcy when he instituted the proceedings. Thus, the significance of the fact that, due to the procedural bar of bankruptcy, the action against the first defendant was already inadmissible when the proceedings were instituted, must be examined. Thus, the OGH refers a question to the ECJ for a preliminary ruling on whether a plaintiff can rely on Article 6(1) when bringing a claim against a person domiciled in the forum state and against a person resident in another Member State, where the claim against the person domiciled in the forum state is already inadmissible by the time the claim is brought, because bankruptcy proceedings have been commenced against him, which under national law results in a procedural bar.