Oberster Gerichtshof, Beschluß vom 26/04/2005 4 Ob 60/05k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0119936
Date: 2005-04-26
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0426(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff agreed with the Italian defendant on the assembly of a winter garden for the plaintiff's Café. In Austria, the plaintiff sought termination of the contract and reimbursement of advance payments. He also sought compensation for the costs incurred in disassembling the winter garden, which was negligently installed by the defendant. Prior to this, the defendant had filed a claim in Italy for the payment of the balance due under the contract for work and labour. The Italian court declared itself competent. The Austrian court of appeal dismissed the claims for termination and reimbursement on the grounds of lis pendens of the Italian proceedings under Article 27(1) Brussels I Regulation. However the court allowed the plaintiff's request for compensation, since the proceedings did not inevitably affect each other in this regard. The parties lodged an appeal in cassation.
The OGH (AT) decides that the lis pendens of the Italian proceedings opposes the claims and dismisses them, as well as the right to compensation, in accordance with Article 27 Brussels I Regulation. Referring to the jurisprudence of the ECJ, the court finds that the determination of the lis pendens depends on whether the essence of two competing proceedings are identical, which is generally the case where the cause of action and its subject correspond. The Italian claim for payment of the balance under the contract for work and labour and the Austrian claim for reimbursement of the advance payment both depend on the validity or infringement of the contract. The right to compensation invoked by the claimant is also linked to the success of the claim for the termination of the plaintiff’s contract, whilst the Italian claim concerning the balance under the contract for work and labour supposes the existence of the contract. Thus, there is a risk of irreconcilable judgements if the proceedings are sustained. Lis pendens is established.