Oberster Gerichtshof; 2020-04-28; 1 Ob 63/20a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2020:0010OB00063.20A.0428.000
Date: 2020-04-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT0428(51)_ENG_SUMJURE
JURE summary
JURE summary
An operator of hydroelectric power plants domiciled in Austria (hereinafter ‘the plaintiff’) filed an action against an insurance company domiciled in Slovenia (hereinafter ‘the defendant’) seeking the issuance of a negative declaratory judgment declaring that the defendant had no claims against the plaintiff relating to a flood event.
The Landesgericht Klagenfurt (hereinafter ‘the Court of First Instance’), in which district the flood event occurred, rejected the action on the basis of an objection of the defendant citing a lack of international jurisdiction.
The Oberlandesgericht Graz (hereinafter ‘the Court of Appeal’) changed the decision of the Court of First Instance and dismissed the objection of the lack of international jurisdiction.
An extraordinary revision filed by the defendant with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) did not raise any significant legal questions.
Article 7(2) of the Brussels I Regulation (recast) (1) stipulates that the plaintiff is entitled to file the action in the courts for the place where the harmful event occurred or may occur. According to the judgment of the Court of Justice of the European Union (2), if the subject-matter of the proceedings is a negative declaratory judgment, even a potential debtor, being in this case the plaintiff, must have the opportunity to sue in the courts for the place where the harmful event occurred or may occur. Therefore, it was necessary to examine regardless of the concrete parties to the dispute where the alleged wrongdoer had acted or where the harm occurred.
The plaintiff filed its action with the Court of First Instance earlier than the defendant with a court in Slovenia. Therefore, the proceedings could not be considered under Article 29)1) of the Brussels I Regulation (recast).
Contrary to the opinion of the defendant, according to the applicable Austrian law, the plaintiff was not obliged to attach a translation of the action to the application. For this reason, the defendant could not invoke a failure on the part of the plaintiff under Article 32(1)(a) of the Brussels I Regulation (recast).
The Supreme Court dismissed the extraordinary revision of the defendant against the decision of the Court of First Instance.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2)  Judgment of the Court of Justice of 25 October 2012, Folien Fischer AG and Fofitec AG v Ritrama SpA., C-133/11, ECLI:EU:C:2012:664, paragraph 52.