Oberster Gerichtshof, Urteil vom 18/12/2002 3 Nc 104/02b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:0030NC00104.02B.1218.000
Date: 2002-12-18
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT1218(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant obtained against the respondent, a company having its seat in Belgium, a judgment of the Austrian OGH, under which the respondent was obliged to abandon certain anticompetitive practices. The claimant applied for a determination of an Austrian court as competent court for enforcement of the judgement. The claimant claimed an infringement by the respondent of the judgement, and highlighted the reason for the application as the impossibility of prosecution abroad, submitting, in evidence, a notice from Belgian attorneys confirming the impossibility of enforcement in Belgium.
The OGH (AT) grants the application for determination of a competent court because of the difficulties with enforcement in Belgium. The determination is possible in enforcement matters, particularly where the national courts have jurisdiction over enforcement of the judgement, but do not have local jurisdiction. A sufficient domestic connection is established for enforcement of the judgement, because it relates to a prohibition on certain anti-competitive practices in Austria. Furthermore, the necessary legal protection requirement also exists. When deciding whether enforcement at the domicile of the respondent is unreasonable in Belgium, the fact that the Austrian prohibition judgement neither fixes an administrative fine according to the reason nor the amount, is to be considered. The enforcement of such a judgement is faced with significant difficulties, because fixing a pecuniary penalty is rejected by the courts of the "astreinte-system". The resulting impossibility of enforcement of the prohibition judgement in Belgium was certified by the claimant by submitting the correspondence of Belgian attorneys. Accordingly the application for designation is to be granted.