OGH; 2018-11-21; 3 Ob 176/18f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0030OB00176.18F.1121.000
Date: 2018-11-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT1121(51)_ENG_SUMJURE
JURE summary
JURE summary
Six natural persons domiciled in Austria (hereinafter ‘the plaintiffs’) sought damages from a bank established in Denmark (hereinafter ‘the defendant’) for breach of contractual due diligence obligations.
In connection with the cancellation of the minimum exchange rate of the Swiss franc against the euro, the defendant adjusted the rates to the plaintiffs’ detriment as a result of a break in the threshold. This applied to the first three orders. The plaintiffs incurred damage from further three orders due to a malfunction in the defendant's trading system, which had carried out the orders at less favourable prices than the prescribed stop prices.
The international jurisdiction of the Landesgericht Linz (hereinafter ‘the Court of First Instance’) was given according to Article 17 of the Brussels I Regulation (recast) (1).
In the plea raised, the defendant argued that the dispute was pending abroad within the meaning of Article 29 of the Brussels I Regulation (recast). Almost two months earlier, the defendant brought action in the Maritime and Commercial Court of Copenhagen in Denmark seeking a declaration that the plaintiffs' claims did not exist. The jurisdiction of that court arises from an agreement on jurisdiction (2), which the parties to the dispute reached, since the plaintiffs must be regarded not as consumers but as traders.
The Court of First Instance suspended the proceedings under Article 29 of the Brussels I Regulation (recast) in conjunction with Section 190 of the ZPO (3). The Danish procedure was a procedural obstacle, as the parties and the subject-matter of the Danish procedure were identical. Although the Danish procedure is not directed solely against the plaintiffs, the subject-matter of the dispute is already given if it agrees with the fundamentals of the action.
The plaintiffs’ appeal on points of law in the Oberster Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) is admissible for clarification, but not justified.
The suspending of the proceedings of its own motion according to Article 29 (4) of the Brussels I Regulation (recast) relates exclusively to the claims that the plaintiffs derive from the losses resulting from not enforcing respective stop prices of orders, which have been executed.
With regards to all other claims, the procedure under Article 30 of the Brussels I Regulation (recast) (5) was suspended. In doing so, the Supreme Court upheld the legal assessment of the Court of Appeal (Oberlandesgericht Linz).
As the Court of Justice of the European Union states, the identity of the subjects in dispute is given according to Article 29 of the Brussels I Regulation (recast) where both actions concern the same fundamentals (6) and the same subject-matter (7). The aim is to avoid irreconcilable judgments and thus indissoluble contradictions.
The Supreme Court upheld the decision of the Court of Appeal, provided that the proceedings concerning the claims that were based solely on the implementation of the order at less favourable stop prices according to Article 29 of the Brussels I Regulation (recast) were suspended. Furthermore, the proceedings are suspended according to Article 30 pending a final decision on the jurisdiction of the Copenhagen Maritime and Commercial Court.
(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) Article 25 of the Brussels I Regulation (recast).
(3) Das österreichisches Gesetz Nr. 113/1895 über das gerichtliche Verfahren in bürgerlichen Rechtsstreitigkeiten (Civil Code of Procedure).
(4) Legal actions pending between same parties regarding the same subject matter in multiple Member States.
(5) The option to suspend the proceedings in the court that was called later when related proceedings are pending in another Member State.
(6) Two legal disputes based on the same contractual relation.
(7) Same subject-matter of the two proceedings.