Oberster Gerichtshof, Urteil vom 28/02/2011 9 Ob 88/10x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:RS0126607
Date: 2011-02-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0228(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant sued the defendant for damages due to non-performance of a sales contract for real estate located in Italy. The claimant had initially brought an action in the Tribunale di Bolzano (IT). The action was dismissed by the Corte d'appello of Trento (IT) upon appeal. This judgment is final. After exhausting the avenues under Italian law, the claimant lodged an appeal against this judgment to the ECHR in Strasbourg. Meanwhile, he brought a fresh action for damages against the defendants in the Landesgericht of Wels (AT). For the purposes of determining the force of res judicata of the Italian judgment, the court had sought a legal opinion regarding Italian law and then decided that the subject-matter of the Austrian action had already been finally adjudicated. The claimant lodged an appeal against the confirmation of this judgment by the appellate court to the OGH (AT).
The OGH dismisses the appeal. The effect of res judicata of the Italian judgment must be recognised in Austria according to its content as determined by Italian law as the lex fori of the court of origin. Its force of res judicata prevents the Austrian action as a procedural bar. The objection of the claimant that the Italian proceedings were flawed is irrelevant due to the prohibition of a review as to the substance in Article 36 Brussels I Regulation. The appeal lodged by the claimant to the ECHR has no effect on the litigation conducted in Austria. Unlike as by the preliminary reference procedure according to which the referring court stays its proceedings, the initiation of proceedings before the ECHR does not result in a stay of proceedings. As a result, the proceedings of the Austrian court are therefore not objectionable.