Oberster Gerichtshof, Beschluß vom 15/01/1998 6 Ob 337/97w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0109202
Date: 1998-01-15
Subject matter: Lugano Convention
Origin: Austria

81998AT0115(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
All parties are domiciled in Germany. The plaintiffs obtained a judgment ordering payment from a German court against the defendant. They contended that the defendant had no enforceable assets. Thus, enforcement against him would be futile. Furthermore, the plaintiffs asserted that the defendant's mother was the owner of real property situated in Austria and that she had registered a ban on resale and mortgaging for the benefit of the defendant "in order to safeguard the family's assets". Thus, the plaintiffs brought an action for annulment before the Landesgericht of Klagenfurt (AT) against the defendant seeking that he was ordered to consent to their enforcement against the real property. The defendant challenged the jurisdiction of the court seised. The court of first instance as well as the OLG of Graz (AT) dismissed the action for lack of jurisdiction. The plaintiffs appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that international jurisdiction has to be determined according to the Lugano Convention. However, the plaintiffs cannot rely on the jurisdiction provided by Article 16(1) Lugano Convention. The court states that it is true that in domestic cases it has held that an action for annulment of a disposition regarding a right in rem in real property can be brought in the court provided by Austrian law of civil procedure. However, in the scope of the Lugano Convention, the ECJ's jurisprudence on the Brussels Convention has to be considered. In its judgment of 10.01.1990 (115/88 - Reichler/Dresdner Bank AG), the ECJ held that Article 16(1) Lugano Convention, which has to be interpreted in an autonomous way, does not apply to the creditor's right to seek annulment, which is based on the creditor' s personal claim against the debtor. The action does not fall within the scope of any other jurisdiction either. Thus, the lower courts were right in dismissing the action.