Oberster Gerichtshof, Urteil vom 24/05/2011 1 Ob 86/11w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0010OB00086.11W.0524.000
Date: 2011-05-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0524(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant brought an action before an Austrian Bezirksgericht opposing execution measures which had been brought against him by a creditor domiciled in Poland. He grounded international jurisdiction on Article 22(5) Brussels I Regulation. The creditor challenged the international jurisdiction of the Austrian courts. After oral hearings, the court held that it lacked jurisdiction and dismissed the action. The costs of the proceedings were awarded against the claimant. Thereupon he brought a state liability action before the Landesgericht of Innsbruck (AT) against the Austrian State seeking damages for the costs of the proceedings which had been imposed upon him. He argued that the Bezirksgericht had incorrectly carried out the proceedings. The dismissal of the action due to lack of international jurisdiction was correct, since the court in fact lacked jurisdiction over the action. However, it should have immediately dismissed the action before service on the sued party pursuant to Article 26 Brussels I Regulation. Far lower costs would have been incurred. The action was dismissed at first and second instance. The claimant lodged an appeal on a point of law to the OGH (AT).
The OGH dismisses the appeal. It states that a court which is seised of an action over which it lacks international jurisdiction does not have an obligation towards the claimant to dismiss the action before it is served upon the sued party. Instead, the defendant must be given the opportunity of entering an appearance regarding the action. In addition, Article 26(2) Brussels I Regulation, which obliges the court to ensure that the action has been served upon the defendant, evinces the fact that Article 26(1) precisely does not obligate the court to dismiss in limine an action over which it lacks jurisdiction without hearing the opposing side. Therefore, the judgment was not wrong, and, consequently, a breach of official duties was not committed.