Oberster Gerichtshof, Beschluß vom 20/02/2008 4 Nc 3/08s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0040NC00003.08S.0220.000
Date: 2008-02-20
Subject matter: Lugano Convention
Origin: Austria

82008AT0220(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant is an Austrian trade association seeking to preserve the interests of the trade. It commenced proceedings against a company, having its seat in Switzerland, which offers financial reorganisation on its website to people seeking financing. By doing so, it conveys the impression that it offers attractive loans for restructuring, while it actually only procures services of other financial reorganisers. The applicant asserted that according to Austrian law, this business activity constituted a banking business. As the latter was performed without the required concession, it constituted an anticompetitive violation which had to be prohibited pursuant to the rules of unfair competition. The applicant seised the OGH (AT) for a determination of local jurisdiction ("Ordination"). It asserted that the court had jurisdiction according to Article 5(3) Lugano Convention, as the respondent also directs its website to recipients in Austria, as the website can be retrieved from everywhere in Austria.
The OGH (AT) dismisses the application for an "Ordination". Such a determination of jurisdiction is only provided for cases where the Austrian courts have international jurisdiction but where local jurisdiction is not established. Article 5(3) Lugano Convention as well as the parallel provision within Article 5(3) Brussels I Regulation regulate international as well as local jurisdiction. Thus, a determination of the court having local jurisdiction is unnecessary. Article 5(3) establishes jurisdiction at the place where the damage was or will be sustained. The respondent's website can be retrieved everywhere in Austria and thus the anti-competitive acts alleged by the applicant can have adverse effects in all of Austria. Hence, all courts having subject-matter jurisdiction also have international and local jurisdiction.