Oberster Gerichtshof, Urteil vom 29/09/2008 3 Nc 50/08w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0030NC00050.08W.0929.000
Date: 2008-09-29
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0929(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
Both, the applicant as well as the respondent, are companies having their seat in Germany. The respondent undertook in a court settlement made before a German court to refrain from making certain comments regarding the applicant's products. The latter asserted that the respondent had acted counter to the obligations undertaken in the settlement by some acts committed in Vienna (AT). Thus, it sought to initiate enforcement measures against the respondent based on the settlement. Therefore, it made an application to the OGH (AT) seeking the determination - a so-called ordination - of the court having jurisdiction to give such an order.
The OGH (AT) dismisses the application for an ordination. It holds that generally the determination of the court having jurisdiction is also possible in matters relating to enforcement. According to Austrian law, the court in whose district the service of the declaration of enforceability, as the first enforcement measure, has to be effected, has jurisdiction over the enforcement of an injunction. As service was to be effected at the respondent's seat in Germany, no Austrian court having jurisdiction is evident. However, in order for a domestic enforcement to be possible, a special legal interest is required. This principle also applies in view of the general rule within Article 38(1) Brussels I Regulation, that enforcement orders given in a Member State shall be enforced in the other Member States. A special legal interest can arise e.g. from the impossibility to enforce the enforcement order in the State of the seat of the party obligated to refrain from certain activities. However, the applicant could initiate the enforcement of the injunction against the respondent in Germany and probably already did so. Thus, the determination of an Austrian enforcement court is out of question.