Oberster Gerichtshof, Urteil vom 07/08/2002 7 Ob 139/02w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:0070OB00139.02W.0807.000
Date: 2002-08-07
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0807(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Austria, attached a claim of its debtor, an Austrian company,  against the defendant, a company having its seat in Germany which was a shareholder of the Austrian company. The claim concerned a primary deposit which so far had not been paid by the defendant. The Austrian company became insolvent. The plaintiff commenced proceedings before the Austrian court having jurisdiction over the Austrian company’s seat, against the German shareholder claiming payment of the outstanding primary deposit. The court of first instance (AT) as well as the appellate court denied international jurisdiction. The court of appeal stated that an attachment order from Austria does not establish ancillary jurisdiction over proceedings for the enforcement of an attached claim.
The OGH (AT) firstly states that international jurisdiction according to Article 5(1) Brussels Convention shall always be determined pursuant to the obligation which forms the basis of the claim. Due to the special position of the plaintiff as (mere) attachment creditor, in this case, the obligation in question is the corporate law claim of the originally obligated party, the Austrian company, for the payment of the primary deposit, which was subrogated to the plaintiff by attachment. This obligation has to be fulfilled at the seat of the company to whom the primary deposit is owed. Thus, the court in whose territory the initially entitled company, which later became insolvent, is seated, shall have jurisdiction.