Oberster Gerichtshof, Urteil vom 09/08/2011 4 Ob 11/11p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:RS0127116
Date: 2011-08-09
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0809(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are siblings. They are heirs in equal parts to the estate of a deceased aunt. During her lifetime, she had gifted the defendant, whose domicile is in Slovakia, a share of a property situated in Vienna (AT).
After the aunt died, both claimants, as her heirs, revoked the gift due to gross ingratitude and brought an action against the defendant before the Landesgericht of Vienna (AT) for transfer of a one third of the share in the property to each of them. They referred to Article 5(1)(a) as well as Article 6(4) Brussels I Regulation in grounding international jurisdiction. The Landesgericht of Vienna and, at second instance, the OLG of Vienna (AT) held that they lacked jurisdiction and dismissed the action. The claimant lodged an appeal on a point of law to the OGH (AT).
The OGH upholds the judgment of the prior instance and dismisses the appeal. It upholds without giving its own reasoning the rejection of the forum of Article 6(4). In this regard, the appellate court pointed out that the claim raised by the claimants of unjust enrichment could not be equated to a claim in rem in immovable property. The OGH refers to Article 5(1)(a) regarding the revocation of a gift due to gross ingratitude sought by the claimants. In determining the place of performance, reference should be made to the contractual provision which the defendant allegedly infringed. Under the applicable Austrian law, in the case of a gift agreement the recipient has a secondary obligation to refrain from behaviour which would be considered as gross ingratitude towards the giver. Such a general obligation to refrain from certain behaviour, which is not performed at any particular location, is not capable of establishing a close connection to a certain court according to the ECJ's ruling from 19.02.2001 - C-256/00 Besix. Therefore, Article 5(1)(a) is not applicable as a whole.