Oberster Gerichtshof; 2017-07-07; 6 Ob 18/17s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2017:0060OB00018.17S.0707.000
Date: 2017-07-07
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82017AT0707(51)_ENG_SUMJURE
JURE summary
JURE summary
A natural person domiciled in Austria (hereinafter ‘the plaintiff’) sought compensation from a stock corporation based in Germany (hereinafter ‘the defendant’). The defendant, as the issuer of shares, had concealed some fundamental information concerning the price formation (regarding the intentional illegal software manipulation in produced diesel vehicles). The plaintiff had acquired his shares far above the real market price and had thereby suffered damage.
The defendant raised an objection, claiming a lack of international and local jurisdiction. It alleged the non-existence of a consumer contract pursuant to Article 17 of the Brussels I Regulation (recast) (1), and that the choice of court clause establishing the exclusive jurisdiction of the place where the defendant has its statutory seat, as defined by company statutes, should be applicable.
The Landesgericht Korneuburg (hereinafter ‘the Court of First Instance’) dismissed the action due to a lack of international jurisdiction.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) dismissed the objection claiming a lack of international jurisdiction and ordered the Court of First Instance to continue with the proceedings. The Court of Appeal held that the dispute concerns consumer matters because the defendant directed its activities, through extensive advertising measures, to the distribution of the shares in Austria.
The defendant’s appeal to the Obersten Gerichtshof (hereinafter ‘the Austrian Supreme Court’) on points of law was found admissible and justified.
In its decision, the Austrian Supreme Court argued as follows.
The shareholder does not apply capital market claims as part of his membership rights, but rather does so similarly to the creditor and, therefore, the jurisdiction clause contained in the company statutes cannot be subsumed under Article 17 of the Brussels I Regulation (recast).
This view was also supported by the judgment (2) of the German Bundesgerichtshof (hereinafter ‘the German Supreme Court’), according to which the prohibition to repay contributions to shareholders, in the case of tortious liability caused by a breach of capital market obligations of the company, does not preclude the claim of the plaintiff due to a lack of membership rights.
As regards jurisdiction over consumer contracts, the plaintiff expressly referred to tort claims, which are not covered by Article 17 of the Brussels I Regulation (recast); it follows directly from the wording of Article 17.
Furthermore, no contract between the parties to the dispute existed, whereas that represents the basic requirement in the case of consumer disputes. In fact, the plaintiff had acquired the shares in the secondary market. Article 7(2) of the Brussels I Regulation (recast) stipulates that the action shall be filed in the courts of the place where the harmful event occurred or may have occurred. However, a domestic (Austrian) place of performance is missing in this case, as the harmful event clearly occurred in Germany, where the withholding (or incorrect statement) of information via the brochure took place.
The consumer must be the recipient of the performance characteristic of the contract. The long-term corporate relationship between the plaintiff and the defendant did not have any contractual basis. There was only a continuing non-remunerated obligation of an organisational nature between them.
The defendant did not direct its activities, establishing the ground of the dispute, to Austria either. It did so, undoubtedly, in connection with the sale of vehicles. However, it did not do so in the case of raising capital, i.e. the issuing of shares and the response of prospective investors.
The Austrian Supreme Court upheld the defendant’s appeal on points of law against the judgment of the Court of Appeal. This judgment had to be amended in such a way that the judgment of the Court of First Instance was restored.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment Nr. II ZR 287/02, AG 2005, 609.