Oberster Gerichtshof; 2015-08-11; F.; S., B.V.; 4 Ob 30/15p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0040OB00030.15P.0811.000
Date: 2015-08-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT0811(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian legal successor to the originally entitled state-owned enterprise of the Soviet Union (the "plaintiff") brought an action for its claims arising from two Austrian trademarks of alcoholic beverages against a company established in the Netherlands (the "defendant").
Essentially, the plaintiff claims that the privatisation process concerning its predecessor had led to an ineffective conversion of its predecessor to the defendant's legal predecessor due to various shortcomings in accordance with the Russian legislation in force at that time. The main argument was that the Dutch court had already decided about the legal invalidity of the privatisation in favour of the plaintiff's legal predecessor against the defendant in a legal dispute regarding the Benelux trademarks.
The defendant claims that the assertion of claims arising from alleged shortcomings in the privatisation process is no longer possible as a result of the expiry of the statute of limitations.
The Court of First Instance (Landesgericht Linz) granted the claims. The ten-year limitation period laid down in accordance with Russian law was only to begin after the registration of the company into the commercial register after the privatisation.
The Court of Appeal (Oberlandesgericht Linz) dismissed the plaintiff's claims to the Austrian trademarks and said that that the ordinary appeal on points of law was not admissible because it was not the task of the Oberster Gerichtshof ("OGH") to interpret foreign (Russian) law. A transformation of the original state-owned enterprise into a commercial company of private law must be assessed in accordance with the personal statute of the involved companies, in other words under Russian law.
The plaintiff’s extraordinary appeal on points of law is admissible and entitled.
The OGH joins the reasoning of the Court of Appeal, stating that the examination of the statute of limitation is to be performed with regard to certain rights of legal action or to specific asserted claims and not generally to the question of the effectiveness of the change of legal form under Russian law.
However, it cannot be conclusively assessed whether the decisions of the Dutch courts concerning the ownership and infringement of the Benelux trademarks based on the relevant norms of the European Union law establish a binding of the Austrian courts in the question of the statute of limitation.
Article 33(1) of the Brussels I Regulation (1) requires so-called IPSO-jure recognition. The effect of the decisions of the courts in the original Member State also extends to the other Member States. If the plaintiff's representation of the Dutch legal situation were true, the Austrian courts would be bound by the assessment of the overall legal succession issue, including the question of the statute of limitation.
However, if the defendant's position proves to be true, nothing would be opposed to the Court of Appeal's judgement on the question of the statute of limitation, even with regard to the Dutch decisions.
According to Article 4(1) of IPRG (2), foreign law (Russian law) is to be determined ex officio. Where the previous instances' determining of foreign law is lacking, this establishes a procedural deficiency of a special nature, which assumes the incorrect assessment as the reason to appeal on points of law and which leads to the annulment of the decisions of the previous instances.
The OGH followed the plaintiff's extraordinary appeal on points of law, annulled the Court of Appeal's decision and assigned to it to give a new decision on the appeal after the appeal procedure was supplemented.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in the version valid until 09.01.2015.
(2) Bundesgesetz Nr. 304/1978 vom 15. Juni 1978 über das internationale Privatrecht (IPR-Gesetz).