Oberster Gerichtshof, Urteil vom 23/09/2004 6Ob 70/04v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0060OB00070.04V.0923.000
Date: 2004-09-23
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0923(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff sought 17_500.00 EUR from the defendants before the Austrian courts. Allegedly, the first defendant had promised him this amount as prize. The plaintiff allegedly accepted the allocation of the prize, however, did not receive the amount despite his demands. The second defendant, domiciled in another Member State than Austria, personally gave a "guarantee" for the payment of this amount. Jurisdiction was based on Article 6 (1) Brussels I Regulation which provides jurisdiction over the joinder of parties. The second defendant challenged the jurisdiction of the court. The Court of First Instance dismissed the action regarding the second defendant as inadmissible. The Court of Appeal overruled this decision. The second defendant appealed to the OGH.
The OGH (AT) overrules the decisions of the lower courts for being null and void. It holds that where a defendant domiciled in the territory of one Member State is sued in the courts of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation (Article 26 (1) Brussels I Regulation). The Court of Appeal would have been obliged to examine its jurisdiction of its own motion without being bound by the plaintiff's assertions. The question, whether the second defendant is obliged to pay the amount claimed together with the first defendant, is relevant for the determination of international jurisdiction according to Article 6(1) Brussels I Regulation as well as for the clarification of the obligation of the second defendant, which forms the object of the dispute. In the case of a so-called fact of double relevance, the conclusiveness of the submission by the plaintiff is sufficient for the determination of jurisdiction. However, with regards to jurisdiction, it is imperative that the parties are granted a right to be heard in the scope of an oral hearing.