Oberster Gerichtshof, Beschluß vom 24/02/1998 4 Ob 34/98y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0109429
Date: 1998-02-24
Subject matter: Lugano Convention
Origin: Austria

81998AT0224(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian defendant was the dormant partner of the plaintiff, a company having its seat in Austria. Furthermore he maintained commercial relations with the plaintiff. After the termination of the partnership, the defendant commenced proceedings against the latter before the LG of Klagenfurt (AT), which had jurisdiction over the seat of the plaintiff, seeking payment of shares in the company's profit. The plaintiff, for its part, brought an action before the same court seeking payment of the purchase price for goods delivered by it to the defendant. The defendant challenged the international jurisdiction of the Austrian courts over the action which the plaintiff had designated "counterclaim". The appellate court allowed the challenge to jurisdiction and dismissed the plaintiff's action. The plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that the prerequisites for jurisdiction over the counterclaim according to Article 6(3) Lugano Convention are not at hand. According to this provision, it is required that the counterclaim arises from the same contract or facts on which the original claim is based. Where the original claim and the counterclaim are not based on the same contract, they at least have to be based on consistent facts. The sales agreement on which the counterclaim is based and the partnership agreement from which the original claim arises constitute two agreements which bear no relationship at all. They are neither based on the same facts. The mere circumstance that the company which seeks payment of the purchase price is the same company in which the defendant had a share, does not establish a close connection within the meaning of Article 6(3) Lugano Convention, which has to be narrowly interpreted. Thus, the plaintiff cannot seise the court with the counterclaim.