Oberster Gerichtshof, Urteil vom 17/10/2008 3 Nc 66/08y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0124087
Date: 2008-10-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT1017(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant is a company with its seat in Switzerland. The respondent has its seat in Denmark. The applicant obtained an interlocutory prohibitory injunction from the Handelsgericht of Vienna (AT), against the respondent, which was restricted to Austria. This injunction prohibited infringement of the applicant's patent. The applicant claimed that the respondent breached this prohibitory injunction by advertising the distribution of a certain type of machine on its website. The applicant requested determination of the competent court for enforcement (so called ordination) against the respondent before the OGH (AT).
The OGH dismisses the request for ordination. According to the Austrian law of enforcement, the competent court of enforcement is the one in whose jurisdiction the first action of enforcement would actually take place. This action is the delivery of the document granting enforcement. As the respondent is based in Denmark, a competent domestic court is not available. A requirement for ordination, however, is that the creditor has its resident within the State. The Swiss applicant does not meet this requirement. The OGH leaves open the question of whether the restriction of ordination only to domestic applicants might perhaps be too narrow and whether a wider interpretation might be necessary. The applicant must demonstrate that the requirements for the ordination of a competent court are met and, if necessary, also prove this. The applicant did not produce anything to demonstrate that these requirements have been met. The question whether enforcement of the prohibitory injunction, which is restricted to Austria, would also be reasonable in Denmark, as claimed by the applicant, is not relevant.