Oberster Gerichtshof, Urteil vom 11/02/1999 2 Ob 22/99w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:0020OB00022.99W.0211.000
Date: 1999-02-11
Subject matter: Lugano Convention
Origin: Austria

81999AT0211(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
In cross-border proceedings before the Austrian courts, the question was raised, until when can the defendant raise a plea of incompetence according to Article 18 Lugano Convention. Also the question of the interpretation of the concept of appearance within the meaning of Article 18 Lugano Convention was raised. Thus one of the parties requested that the questions be submitted to the ECJ for preliminary ruling.
The OGH (AT) finds that Article 177 EC Treaty cannot be applied since a direct competence of interpretation of the ECJ – as in the case of the Brussels Convention which is not applicable here – is not at hand. The answer to the question, until when can the defendant raise a plea of incompetence, is to be given according to the national law of procedure. The concept of appearance within the meaning of Article 18 Lugano Convention shall be interpreted autonomously. It is possible to raise the plea of international incompetence in the same writ in addition to the defence on the substance. This applies independently from the order, thus also independently from the use of set phrases such as “besides”.