Oberster Gerichtshof, Beschluß vom 25/02/1999 6 Ob 139/98d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0111769
Date: 1999-02-25
Subject matter: Lugano Convention
Origin: Austria

81999AT0225(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, worked as a commercial representative for the defendant, an Italian company. The defendant terminated the agency relationship. The plaintiff made a claim for payment of commissions in arrears as well as indemnity for the loss of customers. He commenced proceedings before the Landesgericht of Linz (AT), referring to a jurisdiction clause which had been stipulated by the parties in the agency agreement. The defendant, for its part, had commenced proceedings against the plaintiff before the Tribunale of Monza (IT) seeking damages as well as a declaration that the termination of the agency relationship was justified. The Italian proceedings became pending before the institution of the Austrian proceedings. The lower courts dismissed the plaintiff's action. The latter appealed to the OGH (AT).
The OGH (AT) dismisses the appeal and affirms the appellate judgment. It holds that the Lugano Convention is applicable to the case. According to Article 21 Lugano Convention, the Austrian court later seised shall stay its proceedings until such time as the jurisdiction of the court first seised of the same cause of action is established. According to the ECJ's jurisprudence, the proceedings involve the same cause of action, as their central issues accord. The plaintiff's claim for indemnity is only due to him if the defendant was not authorised to terminate the contractual relationship for cause of the plaintiff. This question again is the object of the motion for a declaratory judgment in the Italian proceedings. It is irrelevant whether the parties effectively stipulated the jurisdiction of the Austrian courts. Article 17 Lugano Convention does not supersede the lis pendens rule according to Article 21 Lugano Convention. The obligation of the court later seised to stay its proceedings has priority.