Oberster Gerichtshof, Urteil vom 15/07/2011 8 Ob 149/10k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0080OB00149.10K.0715.000
Date: 2011-07-15
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0715(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian claimant purchased clothing fabrics from the defendant, a company with its seat in Italy. On the grounds that the delivered goods were defective it brought an action for damages before the Landesgericht of Wels (AT). The defendant has previously brought an action before the Tribunale of Milan (IT) for a declaration that the alleged claims were unfounded. The Italian action was directed against M. GmbH & Co. KG. It was served upon the ***M*** GmbH, the claimant in the Austrian proceedings, which entered an appearance in the proceedings and raised a counter-claim for damages. The M. GmbH & Co. KG had been taken over by the M. Holding GmbH several years prior and had been liquidated; it had transferred the resulting assets to the Austrian claimant. The parties were in dispute before the OGH (AT), as the appellate court, where the Austrian proceedings were barred by the prior lis pendens of the Italian proceedings.
The OGH holds that the Austrian proceedings must be stayed in consideration of the proceedings before the Tribunale of Milan. According to the so-called "centre-point" theory of the ECJ, both proceedings have the same subject-matter, since both concern the claims for damages raised by the Austrian claimant arising out of the same sales contract. Both proceedings are also between the same parties within the meaning of Article 27(1) Brussels I Regulation. According to the ECJ's ruling from 19.05.1998 - C-351/96 - Drouot a third party is considered as identical to one of the parties if a judgment would have force of res judicata against it directly. According to company law, the Austrian claimant is the universal legal successor of the M. GmbH & Co. KG and a judgment issued against this company is also effective as against it. Moreover, the Austrian claimant entered an appearance in the Italian proceedings.