Oberster Gerichtshof, Urteil vom 28/03/2000 1 Ob 55/00w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:0010OB00055.00W.0328.000
Date: 2000-03-28
Subject matter: Lugano Convention
Origin: Austria

82000AT0328(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria requested the payment of services provided to the defendant, a company domiciled in Germany. The defendant first raised a plea of incompetence of the Austrian court and later filed a statement of defence on the merits. The court of first instance considered itself not competent and this was confirmed by the court of appeal.
The OGH (AT) finds on the one hand that the question, until when a defendant party can raise a plea of incompetence, is to be determined according to national procedural law. The concept of appearance according to Article 18 Brussels Convention shall however be determined autonomously. Thereto, the defendant party can not only contest the jurisdiction but can also in addition argue on the substance without losing the plea of incompetence. This applies independently from the order of the objections in the same writ. Hence, the defendant did not enter an appearance without contesting the incompetence.