Oberster Gerichtshof; 2018-12-20; 4 Ob 181/18y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0040OB00181.18Y.1220.000
Date: 2018-12-20
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82018AT1220(52)_ENG_SUMJURE
JURE summary
JURE summary
A registered association, which monitors and protects free economic competition in Austria (hereinafter ‘the plaintiff’) sought a ban on the operation of an online platform for the distribution of tickets to events worldwide by a public limited company based in Switzerland (hereinafter 'the defendant'). The defendant carried out the activities of a ticket office without authorisation and continuously violated the provisions of UWG (1).
The jurisdiction of the Landesgericht Linz (hereinafter 'the Court of First Instance') was based on Article 5(3) of the New Lugano Convention (2), which contains provisions on unfair competition claims. The defendant raised the objection of lack of international and local jurisdiction. Neither the place of the harmful event nor the place of damage was located in Austria. Under Article 2 of the New Lugano Convention, the courts in Switzerland were competent internationally and locally.
The Court of First Instance dismissed the action for lack of international and local jurisdiction.
The Oberlandesgericht Linz complied with the plaintiff's appeal, rejected the defendant's objection of the lack of jurisdiction, and ordered the Court of First Instance to continue the proceedings. With regard to a violation of UWG in conjunction with action brought by an association, the Oberster Gerichtshof der Republik Österreich (hereinafter 'the Supreme Court') had ruled that a violation of unfair competition law was an attack on the Austrian legal system (3). This provided jurisdiction according to Article 5(3) of the New Lugano Convention.
The defendant lodged an extraordinary appeal on points of law against the decision, which is admissible but not justified.
The Supreme Court points out that it is important in this case to assess if the place where harm arose, i.e. the place of materialization of the damage (Article 5(3) of the New Lugano Convention), lies in Austria. Such materialization must be primary damage (4). The Court of Justice of the European Union (CJEU) has also ruled that in the event of a claim for damages, the injured party has the option to assert its claim either in the State where the injuring party is based or in a Member State in which the injured party’s interests are focused (5).
In further case law (6) on the violation of intangible rights, the CJEU concluded that the place where harm arose is also the place of a Member State in which the rights, of which the infringement is asserted, are protected.
Furthermore, the CJEU affirmed the jurisdiction of the State of registration if the website concerned is available in that State and the plaintiff asserts the infringement of their trade mark rights (7).
For the reasons cited above, it results that, in order to protect against unfair competition in an agreement with the place where harm arose, the jurisdiction is justified according to Article 5(3) of the New Lugano Convention.
The Supreme Court did not comply with the defendant's appeal on points of law. The Court of First Instance has international jurisdiction. As far as local jurisdiction is concerned, the association has the option to file its action in one of the competent courts in Austria.
(1) Bundesgesetz gegen den unlauteren Wettbewerb 1984 – UWG (Federal Act Against Unfair Competition).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Oberster Gerichtshof, Urteil vom 18/11/2008 4 Ob 203/08v, ECLI:AT:OGH0002:2008:0040OB00203.08V.1118.000
(4) Judgment of the Court of Justice of 5 July 2018, AB ‘flyLAL-Lithunian Airlines’ v Starptautiskā lidosta ‘Rīga’ VAS and ‘Air Baltic Corporation’ AS, C-27/17, ECLI:EU:C:2018:533.
(5) Judgment of the Court of Justice of 25 October 2011, eDate Advertising GmbH and Others v X and Société MGN LIMITED, Joined Cases C-509/09 and C-161/10, ECLI:EU:C:2011:685.
(6) Judgment of the Court of Justice of 5 June 2014, Coty Germany GmbH v First Note Perfumes NV, C‑360/12, ECLI:EU:C:2014:1318.
(7) Judgment of the Court of Justice of 19 April 2012, Wintersteiger AG v Products 4U Sondermaschinenbau GmbH, C‑523/10, ECLI:EU:C:2012:220.