OGH; 2020-01-23; 6 Ob 202/19b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2020:0060OB00202.19B.0123.000
Date: 2020-01-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT0123(52)_ENG_SUMJURE
JURE summary
JURE summary
An insolvency administrator (hereinafter ‘the plaintiff’) appointed by the Landgericht Innsbruck (hereinafter ‘the Court of First Instance’) filed, within the insolvency proceedings regarding a GmbH & Co KG company domiciled in Austria (hereinafter ‘the debtor’), an action seeking the repayment of a specific amount by a GmbH & Co KG company domiciled in Germany (hereinafter ‘the defendant’).
According to the plaintiff, if Article 82(1) and Article 83(1) of the GmbHG (1) were applied by analogy to limited partnerships (Kommanditgesellschaften) where no individual was a partner with unlimited liability, payments made by the debtor to the defendant as a management fee in 2015/2016 were contrary to the ban on the refund of capital contributions, resulting in the nullity of the business management contract and giving rise to the obligation of the defendant to repay the respective amounts.
The defendant contested the international jurisdiction claiming that under the business management contract, the place of performance and jurisdiction regarding any disputes in relation to the contract was the defendant’s domicile in Germany.
The Court of First Instance did not agree with the objection and admitted the action stating that the claim for repayment represented a contractual claim under Article 7(1)(a) Brussels I Regulation (recast) (2).
The Oberlandesgericht Innsbruck (hereinafter ‘the Court of Appeal’) upheld the appeal of the defendant, declared the lack of international jurisdiction of the Court of First Instance and dismissed the action. Even though the business management contract was invalid, the exclusive jurisdiction of the German courts was given under the principle of free choice regarding the place of jurisdiction.
The revision lodged by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found admissible and justified.
Having regard to the ban on the refund of capital contributions, the Court of First Instance was correct to qualify the pursued claims as matters relating to a contract between companies under Article 7(1) of the Brussels I Regulation (recast).
If the agreement of the place of jurisdiction was valid, it would not prevent the international jurisdiction of the Court of First Instance. Just as the business management contract, the agreement of the place of jurisdiction suffered from the lack the power of representation on the part of the managing director of the limited partner (Komplementär) of the debtor.
The Oberstes Gerichtshof changed the decision of the Court of Appeal and renewed the judgment of the Court of First Instance.
(1) Gesetz vom 6. März 1906 über Gesellschaften mit beschränkter Haftung (Austrian Limited Companies Act of 6 March 1906).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.