Oberlandesgericht Wien, Urteil vom 26/05/2003 3 R 49/03b
Decision by national courts in the field of European Union law — ECLI:AT:OLG0009:2003:RW0000581
Date: 2003-05-26
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82003AT0526(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The liquidator of an Austrian company brought an action for payment before an Austrian court against the director of the company who was domiciled in Germany as well as against the German parent company. The claim was based on the breach of the duty to initiate redevelopment measures and the omission of initiating legal reorganisation proceedings according to Para. 22 URG (Austrian company reorganisation act). The plaintiff asserted that the Austrian court seised had jurisdiction according to Article 5(3) Brussels I Regulation. The defendants challenged the international jurisdiction.
The OLG of Vienna (AT) holds that
the term „tort“ within the meaning of Article 5(3) has to be interpreted in an autonomous way. It is required that the action is not connected to a “contract” within the meaning of Article 5(1) Brussels I Regulation. The duties whose breach gave rise to the claim for damages in tort may not be so closely connected to a contract that the contractual element decidedly shapes the character of the legal relationship in tort. However, the no-fault liability regulated in Para. 22 of the Austrian company reorganisation act is indivisibly connected to the organical relationship between the representative organ and the represented legal entity. The duties of the director to initiate redevelopment measures for a company in a crisis and to possibly file for bankruptcy were based on this contractual relationship. Thus Article 5(1) should be applied instead of Article 5(3) Brussels I Regulation. Thereby, the forum of the place of performance of the obligation in question does not only apply to the claim for performance but also to the claims for damages and restitution arising from the contract, even where they are based on law. As, according to Austrian law which is applicable in this case, the place of performance of the defendants' breached obligation is Austria, the court seised has jurisdiction.