Oberster Gerichtshof, Urteil vom 05/08/2009 6 Ob 122/09y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0060OB00148.09X.0805.000
Date: 2009-08-05
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0805(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant was the owner of a Spanish property company, which had a condominium in Palma de Mallorca. The defendant was the owner of an Austrian condominium. The claimant transferred shares in the company to the defendant. In return, the latter transferred his Austrian condominium to the claimant. Subsequently, the claimant initially brought an action before a court in Palma de Mallorca (ES) against the defendant and the company for a declaration that the share assignment was void. It was a void sham transaction without any real content. A short time thereafter, the claimant brought an action against the defendant before the Landesgericht of Linz (AT), seeking the return of the company shares due to serious defects in law of the contract - lesion beyond moiety, fraudulent intent and unconscionability. According to the claimant, the value of the Spanish apartment exceeded that of the Austrian apartment by several times. The Landesgericht and the OLG of Linz (AT) dismissed the action pursuant to Article 27 Brussels I Regulation due to the first seised Spanish proceedings. The claimant lodged an appeal on a point of law to the OGH (AT).
The OGH grants the appeal. According to the jurisprudence of the ECJ, in order for two parallel proceedings within the meaning of Article 27 to have the same cause of action, they must share the same end in view and the same basis (so-called "centre point theory" of the ECJ). In the current case, the two actions have the same end in view, namely the rescission of the share assignment and reinstatement in the position of shareholder. However, the two actions do not share the same basis: in the Spanish proceedings the claimant alleges a sham transaction; the Austrian action considers, however, that there is a legal transaction, which is void due to legal defects. Since a case of Article 27 is not concerned, the Austrian courts must decide on the merits.