Oberster Gerichtshof, Urteil vom 04/04/2006 1 Ob 73/06a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:RS0120663
Date: 2006-04-04
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT0404(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff sought before an Austrian court wages for work conducted on several construction sites from the defendant, having its seat in Germany, and having several branches in Austria. A default judgment was pronounced. The defendant lodged an objection against the judgment and challenged, inter alia, the jurisdiction of the court seised, as according to Article 5(5) Brussels I Regulation, a dispute arising out of the operations of a branch may only be brought before the courts for the place in which the branch is situated. The plaintiff asserted by reference to Para. 240 of the Austrian rules of civil procedure (ZPO) that the challenge to jurisdiction could not be brought anymore in an appeal against a default judgment. Thus, the question arises whether it is enough for Article 24 second sentence of the Brussels I Regulation to challenge the jurisdiction not of all the courts of a certain State but only of a particular court.
The OGH (AT) examines whether the jurisdiction of the court of first instance was justified according to Article 24 Brussels I Regulation. The court finds that the defendant did not have to assert the lack of jurisdiction of all Austrian courts. Article 24 Brussels I Regulation aims only at the jurisdiction of a specific court of a Member State and not at the jurisdiction of all courts of that Member State. Furthermore, the OGH holds that the mere omission of a procedural act ordered by national procedural law cannot be sufficient to establish jurisdiction. An entry of appearance according to the wording of Article 24 Brussels I Regulation implies an activity by the defendant. Since according to Article 26(1) Brussels I Regulation, the court has to determine a lack of jurisdiction ex officio, the defendant is not obliged to enter an appearance before an incompetent court at all. The plea of incompetence raised with the appeal was therefore timely within the meaning of Article 24 Brussels I Regulation.