Oberster Gerichtshof, Urteil vom 25/05/1999 3 R 176/99a
Decision by national courts in the field of European Union law — ECLI:AT:LG00929:1999:RFE0000049
Date: 1999-05-25
Subject matter: Lugano Convention
Origin: Austria

81999AT0525(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff brought a debt collection claim before the Austrian courts against the defendant seeking the payment of a certain amount of money. After an order for payment was issued but could not be served on the defendant at its address in Austria due to “unknown addressee”, the plaintiff sought another service of the order for payment in Switzerland. The court of first instance dismissed the claim since the defendant no longer had its seat in the court’s territory.
The LG Feldkirch (AT) allows the appeal. It holds that in a case falling within the scope of the Lugano Convention, the court may not determine its lack of jurisdiction ex officio. Instead, the defendant must be given the opportunity to enter an appearance. The court of a Contracting State may only determine its lack of jurisdiction ex officio, where it was seised of a matter for which the court of another Contracting State has exclusive jurisdiction according to Article 16 Lugano Convention. This is not the case here. Since there is a connection with a foreign State due to the new seat of the defendant, the defendant must be given the opportunity to enter an appearance in the proceedings which would remedy the lack of jurisdiction.