Oberster Gerichtshof, Urteil vom 26/08/2008 4 Ob 80/08f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0040OB00080.08F.0826.000
Date: 2008-08-26
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0826(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, an Austrian company, concluded a distribution agreement with the first defendant, a Netherlands company, regarding the sale of blood pressure meters in Austria. The first defendant is a subsidiary of the Japanese manufacturing group. The second and third defendants are central affiliates for the direction of group policy. The distribution agreement between the plaintiff and the first defendant refers "all disputes which arise from this agreement " to an arbitrator. The plaintiff brought an action for damages and for an injunction on the ground that the German distributing company of the group obtained the same devices for a significantly more favourable price. It held that this constituted unfair competition and was inadmissible according to antitrust law, and infringed its agreement with the first defendant. The lower courts dismissed the action for being inadmissible with reference to the arbitration agreement. The plaintiff appealed.
The OGH (AT) allows the appeal in part. It holds that the legal dispute has been withdrawn from the courts of law only insofar, as the plaintiff - also - bases its claims on the agreement with the first defendant. However, the non-contractual claims regarding unfair competition and infringement of antitrust law do not fall within the arbitration agreement. Thus, the plaintiff can bring those claims before a court of law. Jurisdiction over the first defendant is established according to Article 5(3) Brussels I Regulation, over the Japanese defendants according to Austrian procedural law. As the damage that the plaintiff allegedly incurred was a primary damage to its assets, the Austrian courts at its seat have jurisdiction over the action. However, the latter may only determine the alleged unfair competition and infringement of antitrust law, but not the contractual claims which were referred to the arbitration court.