Oberster Gerichtshof, Urteil vom 10/05/2011 4 Ob 41/11z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0040OB00041.11Z.0510.000
Date: 2011-05-10
Subject matter: Lugano Convention
Origin: Austria

82011AT0510(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties were in disagreement over B.’s estate. The defendants were the heirs of B.’s son. The claimant argued that legal provision had been made for him in B’s will as beneficiary. He claimed to be entitled to the portion of B.’s estate, to which B.’s son was not entitled under his statutory share. A court proceeding between the parties in Switzerland for the recission of the claimant’s apppointment to beneficiary by B. and the restitution of gifts given to the claimant by B. is still pending. The proceeding has not yet reached a legally binding conclusion. The claimant brought an action before the Landesgericht of Vienna (AT) against the defendants for the delivery of goods described in the estate. The defendants filed an application with reference to the proceedings in Switzerland under Article 21 Lugano Convention requesting that the proceedings in Austria be stayed until a decision is reached in the Swiss case. The Landesgericht of Vienna stayed the proceedings. The OLG of Vienna dismissed the claim at the appeal instance. The claimant challenged this decision and brought an appeal on a point of law to the OGH (AT).
The OGH allows the claimant‘s appeal, stating that the Lugano Convention is not applicable according to Article 1(2)(1). Cases concerning the validity or interpretation of a will, as well as those questioning whether a valid will has been established to the benefit of the claimant, on which the claimant may support the arguments raised in his claim, also fall under this exlusion clause. Because the claim is excluded from the scope of application of the Convention, Article 21 may not be applied. The lis pendens rule in the treaty on enforcement concluded between Austria and Switzerland in 1960 must be considered instead. Thereunder, the subject matter of the Austrian and Swiss proceedings are not one and the same. The appeal court’s decision must therefore be reversed and the proceeding remitted to the latter.