Oberster Gerichtshof, Beschluß vom 08/04/1997 1 Ob 2123/96d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1997:RS0107340
Date: 1997-04-08
Subject matter: Lugano Convention
Origin: Austria

81997AT0408(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff claims damages from the defendants following the late and defective construction of a building. In previous proceedings in which the defendants participated as intervening parties, the present plaintiff was ordered to pay the construction wages. The court of first instance (AT) as well as the court of appeal did not consider themselves bound to the actual findings of the previous proceedings.
The OGH (AT) makes findings about the binding effect of the factual observations made in the previous proceedings in case of a third party notice and subsequent intervention of the third party in support of one of the parties. It also consults the Lugano Convention, as it has an influence on the interpretation of the Austrian code of civil procedure. According to this Convention, each form of action for recourse would be “an action on a warranty or guarantee” within the meaning of Article 6(2) Lugano Convention, whereas the concept of “third party proceedings” is often used as a generic term for the implication of third parties in a dispute between other persons. Such a claim is aimed at a decision concerning the rights of a third party. Austria has expressed reserves against the jurisdiction provided for this type of claims. The reserves only make sense where the third party notice and the subsequent intervention of the third party in support of one of the parties develop a binding effect similar to the claim mentioned in Article 6(2). Where following proceedings constitute proceedings for recourse, intervening parties or parties that did not participate to the original proceedings in spite of a third party notice, may not raise objections, which would be contrary to the fundamental elements in the decision given in the original proceedings.