Oberster Gerichtshof, Urteil vom 21/01/2003 4 Ob 298/02f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:0040OB00298.02F.0121.000
Date: 2003-01-21
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0121(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff produces and sells medical-technical products in Austria and Germany. The first defendant is a former representative of the plaintiff, the second defendant is a limited liability company under German law, having its seat in Germany, which was established by the first defendant and his wife. The plaintiff brought an action before the Austrian court having jurisdiction over the domicile of the first defendant seeking an injunction against both defendants prohibiting them to entice away its employees. The second defendant challenged the jurisdiction of the Austrian court over the claim against it.
The OGH (AT) firstly holds that a joinder of proceedings against various defendants before the jurisdiction provided by Article 6(1) Brussels Convention requires that  the claims are so closely connected that it is expedient to hear them together in order to avoid irreconcilable judgments resulting from separate proceedings. Although in contrast to the new wording of Article 6(1) Brussels I Regulation, this prerequisite is not expressly mentioned in Article 6(1) Brussels Convention, it is required according to the ECJ's jurisprudence. The burden of proof for the existence of a close connection lies with the plaintiff. However, a conclusive demonstration is sufficient where this question - as so-called fact of double relevance -  is also relevant for the decision on the merits, as in this case.The plaintiff has conclusively demonstrated that its claims are similar de iure as well as de facto and that they are based on the same facts. Thus, the plaintiff may avail itself of the jurisdiction provided by Article 6(1) Brussels Convention.