Oberster Gerichtshof, Urteil vom 02/02/1998 7 Nd 514/97
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:0070ND00514.97.0202.000
Date: 1998-02-02
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

81998AT0202(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant is the creditor of a titled claim against the debtor, which he seeks to enforce in Austria. The applicant obtained a garnishee order from the Bezirksgericht of Salzburg (AT) allowing the attachment of a claim of the debtor against a company having its seat in Germany. The applicant intended to seek payment of the attached claim from the company as garnishee. He applied to the OGH (AT) for a preliminary determination of the court having jurisdiction over the subrogatory action against the garnishee, a so-called “ordination”. He contended that the Austrian courts had exclusive international jurisdiction over such an action against the garnishee under Article 16(5) Lugano Convention. However, Austrian law of civil procedure does not indicate a court having local jurisdiction over a subrogatory action, which thus has to be determined by the OGH.
The OGH (AT) dismisses the application for an ordination. It holds that an Austrian court, in its function as court seised with enforcement proceedings, may also attach a claim of an Austrian debtor against a garnishee having its seat in another Contracting State of the Lugano Convention. To what extent the court can thereby act without interfering with the sovereign rights of the State in which the garnishee has its seat and whether it is allowed to serve the garnishee with an attachment order does not have to be finally determined. Contrary to the applicant’s assertions, the jurisdiction provided by Article 16(5) Lugano Convention does not apply, as ancillary jurisdiction, to an action based on an attached claim against a garnishee. Rather jurisdiction over a subrogatory action against the garnishee has to be determined independently according to the jurisdiction system within the Lugano Convention. As international jurisdiction is lacking, there is no ground for a determination of local jurisdiction.