Oberster Gerichtshof; 2015-10-22; R., L.; R., eGen; 10 Ob 73/15f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0100OB00073.15F.1022.000
Date: 2015-10-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT1022(51)_ENG_SUMJURE
JURE summary
JURE summary
Two natural persons resident in Slovenia (the "plaintiffs") sought surrender, declaration, performing and injunction by an Austrian-based credit company (the "defendant"). The defendant had unfairly requested the initiation of a forced procedure concerning the property in Slovenia. The plaintiffs claimed that they had made the majority of the payments owed by means of a third person.
The defendant raised the plea of lack of international competence regarding the performance and injunction. According to Article 22(5) of the Brussels I Regulation (¹), if a lawsuit’s subject matter is a forced procedure, then exclusive jurisdiction is assigned to the courts of the Member State in whose territory the enforcement should be carried out.
The Court of First Instance (Landesgericht für Zivilrechtssachen Graz) rejected the claim due to lack of international competence.
The Court of Appeal (Oberlandesgericht Graz) joined the view of the Court of First Instance and did not follow the plaintiffs’ appeal.
The plaintiffs' appeal on points of law is admissible, but not entitled.
According to the binding legal view of the Oberster Gerichtshof (the "OGH"), Article 22(5) of the Brussels I Regulation stipulates a case that has a particularly narrow relation to a particular Member State. It is a procedure resulting from the use of coercive instruments, in particular in the case of the surrender or seizure of immovable or movable property. All such disputes fall under the exclusive jurisdiction of the court of the place of enforcement.
The injunction may be requested in the courts of a Member State even if the courts of another Member State are competent for the decision on the substance of the matter (²). The decision on the substance of the matter is the decision that will yield the final ruling over the claim to be secured or, respectively, the legal relationship to be decided.
In the present case, the claim to be secured, the pausing of the Slovenian execution procedure, is not the immediate procedural object of the claim to surrender an account statement (point 1) or the determination of the amount of the outstanding balance (point 2). Also, with respect to the points 1 and 2, the Court of First Instance shall not be regarded as the court who will decide on the substance of the matter according to Article 31 of the Brussels I Regulation and is not competent for the issuance of the injunction applied for.
Another precondition for ordering an injunction according to Article 31 of the Brussels I Regulation is that the court where the claim for an injunction is made has a real link to the measure requested (³). In real estate, it is the court in whose jurisdiction the property is located because it is best able to assess the circumstances that are decisive for the issuing or the refusing of the requested action. In the present case, it is a Slovenian court.
The OGH did not follow the plaintiffs’ ordinary appeal on points of law.
(¹) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, valid until 09.01.2015.
(²) Please, see Article 31 Brussels I Regulation.
(³) Judgment of the Court of Justice of 17 November 1998, Van Uden Maritime BV, trading as Van Uden Africa Line v Kommanditgesellschaft in Firma Deco-Line and Another, C-391/95, ECLI:EU:C:1998:543.