Oberster Gerichtshof, Beschluß vom 17/02/2006 10 Ob 147/05y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:RS0120605
Date: 2006-02-17
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82006AT0217(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff company A, a transport company, was entrusted with the transport of a shipment of goods from the Netherlands to Austria. As regards company A, it had entrusted the Dutch company B with the carrying out of the transport by truck. The Dutch company, which was commissioned by the latter with the transport, brought the goods in its warehouse where a part of the goods was stolen. A as carrier was ordered to pay damages. Thereafter, B and C brought a claim for a negative declaratory judgment before Netherlands courts as regards their obligation to compensate A. Thereupon, A commenced proceedings in Austria against B and C, seeking redemption for its performance according to the judgment of the commercial court of Vienna. The latter challenged the proceedings in Austria on the grounds, inter alia, of lis pendens according to Article 31(2) CMR.
The OGH (AT) finds that the wording of Article 31 CMR points out that the plaintiff has the choice whether he wants to bar later claims arising out of the same legal relationship by establishing lis pendens through his prior action (even if it was a declaratory action). Article 21 of the Brussels Convention is interpreted broadly by the ECJ in order to avoid the situation of irreconcilable judgments regulated in Article 34(3) Brussels I Regulation. The same situation could however arise where competence in the original proceedings is based on the CMR and not the Brussels I Regulation, since such a decision is also to be recognised and enforced according to the provisions of the Brussels I Regulation. Article 21 of the Brussels Convention as well as Article 31(2) of the CMR aim at avoiding irreconcilable judgments from different Contracting States. Thus, it can be held that a previous negative declaratory action establishes lis pendens in relation to the consequential action for performance, which is instituted subsequently.