Oberster Gerichtshof, Beschluß vom 07/11/2002 6 Ob 264/02w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0056157
Date: 2002-11-07
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT1107(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, an Austrian association for consumer protection sought injunctive relief against a company having its seat in Germany in order to prevent it from using unfair terms in its general terms and conditions. While the court of first instance denied international jurisdiction on the ground that the harmful event had not yet occurred - as required by Article 5(3) Brussels Convention -
the court of appeal held that the usage of the contested terms constituted an interference with the stability of the law and thus, a tort, delict or quasi-delict within the meaning of Article 5(3) Brussels Convention.
In these proceedings, the OGH (AT) submitted the question to the ECJ whether the claim for injunction to prevent the usage of illegal or immoral general terms and conditions brought by a consumer organisation constituted a tort, delict or quasi-delict or at least was equatable and thus could be brought before a court having jurisdiction according to Article 5(3) Brussels Convention.
As the ECJ answered the question in the affrimative in its judgment of 01.10.2002 (C-167/00), the OGH holds that the jurisdiction according to Article 5(3) Brussels Convention already exists before the damage occurrs and thus - as now expressly provided in Article 5(3) Brussels I Regulation ("or may occur") - also applies to a preventive action for injunction.