Oberster Gerichtshof; 2020-07-02; 4 Ob 74/20s
Decision by national courts in the field of European Union law — JJT_20200702_OGH0002_0040OB00074_20S0000_000
Date: 2020-07-02
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT0702(51)_ENG_SUMJURE
JURE summary
JURE summary
A glucometer company domiciled in Austria (hereinafter ‘the plaintiff’) filed an action against a glucometer company domiciled in Germany (hereinafter ‘the defendant’) seeking the issuance of a negative declaratory judgment declaring that the defendant had no cease and desist claims against the plaintiff regarding the glucometers sales and promotion.
The defendant demanded that the plaintiff cease and desist from its activities, claiming to have a legitimate cease and desist claim against the plaintiff due to misleading information on the plaintiff’s product packaging.
The defendant contested the international and local jurisdiction of the Austrian courts stating that no competition relationship existed in Austria.
The competent Landesgericht (hereinafter ‘the Court of First Instance’) found itself incompetent citing a lack of international jurisdiction and dismissed the action. Neither the place where the event occurred which gave rise to the alleged breach nor the place where the alleged breach itself occurred were in Germany.
Acting upon an appeal of the plaintiff, the Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) cancelled the decision of the Court of First Instance. The place where the event giving rise to the alleged breach occurred was in Austria due to the fact that it was Austria where the plaintiff produced, packaged and initially placed the goods on the market and developed and uploaded the allegedly misleading advertisements on the internet.
The extraordinary revision filed by the defendant with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was not successful.
Article 5(3) of the Brussels I Regulation (1) stipulates that the plaintiff is entitled to file the action in the courts for the place where the harmful event occurred or may occur. According to the judgment of the Court of Justice of the European Union (2), if the subject-matter of the proceedings is a negative declaratory judgment, even a potential debtor, being in this case the plaintiff, must have the opportunity to sue in the courts for the place where the harmful event occurred or may occur. Therefore, it was necessary to examine, regardless of the concrete parties to the dispute, where the alleged wrongdoer had acted or where the harm occurred. In this case, the place where the event giving rise to the alleged breach occurred was in Austria.
The Supreme Court dismissed the extraordinary revision of the defendant against the decision of the Court of Appeal.
(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.
(2) Judgment of the Court of Justice of 25 October 2012, Folien Fischer AG and Fofitec AG v Ritrama SpA., C-133/11, ECLI:EU:C:2012:664, paragraph 52.