Oberster Gerichtshof, Urteil vom 16/12/2003 4 Ob 58/03p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0118405
Date: 2003-12-16
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT1216(07)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Germany, owns the international trade mark rights for the brand “Boss” for clothing. The defendant, also having its seat in Germany, is, the owner of the same named Austrian brand for cigarettes. The plaintiff sought, before a German court, an injunction against the sale of cigarettes inside and outside the Federal Republic of Germany under the name “Boss” by the defendant, relying on German competition law. In a subsequent action, the plaintiff also sought an injunction from an Austrian court, this time on the basis of Austrian competition law, specifically referring to the sale of “Boss” cigarettes at the airport in Salzburg (AT). Both the Austrian court of first instance and the court of second instance declared that they had no jurisdiction, according to Articles 21, 22 Brussels Convention, on the basis of the pending proceedings in Germany.
The OGH (AT) firstly holds that according to the jurisprudence of the ECJ, the subject matter of the dispute is to be understood very broadly and it is sufficient if two pending legal disputes fundamentally concern the same question. According to the ECJ, this is the case if the basis of the claims, i.e. the facts, on which they are based, as well as the subject matter, i.e. the purpose of the claims, correspond. Particularities of the national legal orders are thus irrelevant. In the present case, the plaintiff pursues the same objective in both actions and both have the same set of facts forming their basis. The fact that the plaintiff concentrates and concretises its claims in the later Austrian proceedings changes nothing because its request in the first German proceedings had already been very generally and broadly expressed.