Oberster Gerichtshof; 2017-02-21; 4 Ob 137/16z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2017:0040OB00137.16Z.0221.000
Date: 2017-02-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82017AT0221(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian agency (hereinafter ‘the plaintiff’) brought an action to obtain an injunction preventing unlawful behaviour (1) and compensation from a company with its registered seat in Luxembourg (hereinafter ‘the defendant’). In television programmes broadcasted by satellite, the defendant had used sound works from the repertoire of the plaintiff without consent and without payment of an appropriate remuneration.
The international jurisdiction of the court was based on Article 7(2) of the Brussels I Regulation (recast) (2). The damage occurred in Austria.
The defendant alleged a lack of international jurisdiction. The defendant claimed that the court of the place where it has its seat in Luxembourg should have jurisdiction. The state of transmission principle contained in Section 17b of the copyright law in conjunction with Article 1(2)(b) of the Satellite Directive (3) establishes the exclusive jurisdiction of the emission state over the alleged claims.
The Handelsgericht Wien (hereinafter ‘the Court of First Instance’) dismissed the claim, stating that the emission state shall also determine the jurisdiction in matters relating to tort under Article 7(2) of the Brussels I Regulation (recast). The transfer of damages to Austria would be contrary to the state of transmission principle.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) confirmed the decision of the Court of First Instance. The state of transmission principle is crucial. For the assessment of the facts, the copyright law of the emission state should be applied. The place of the cause of the damage and the place of the result is in the emission state, not in Austria.
The appeal to the Oberster Gerichtshof (hereinafter 'the Austrian Supreme Court') was held admissible and justified. The the Austrian Supreme Court confirmed that the plaintiff correctly established the jurisdiction in accordance with Article 7(2) of the Brussels I Regulation (recast). According to the case-law of the CJEU (4), this jurisdiction covers both the place where the event which gave rise to the harm occurred (the place of the act) and the place where the harm occurred or threatens to occur (the place of the result).
It was disputed whether Article 1(2)(a) and (b) of the Satellite Directive also contains rules on international jurisdiction. The Bundesgerichtshof (the German Supreme Court) formerly issued a decision (5) on this question, stating that this directive does not contain any rules on international jurisdiction. The state of transmission principle cited in that provision neither describes the international jurisdiction nor does it constitute a conflict of law rule on the applicability of substantive law.
The jurisdiction of the Court of First Instance is given for claims arising from a breach of the obligation to pay reasonable remuneration and damages under the Late Payments Directive (6); this would also apply if the provisions of the Satellite Directive would be understood as a conflict of law rule according to which Luxembourgish law would have to be applied because of the transmission location.
The Austrian Supreme Court further considered that the Satellite Directive does not contain procedural provisions governing international jurisdiction. The jurisdiction should be determined in accordance with Article 7(2) of the Brussels I Regulation (recast). The jurisdiction of the Austrian courts is therefore also given in respect of the action for injunction.
The Austrian Supreme Court affirmed the plaintiff’s appeal on a point of law. The decisions of the lower courts were changed in order to reject the plea of lack of international jurisdiction.
(1) Article 81 of the Bundesgesetz Nr. 111/1936 über das Urheberrecht an Werken der Literatur und der Kunst und über verwandte Schutzrechte (Urheberrechtsgesetz) (copyright law).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.
(4) Court of Justice of the European Union.
(5) See Decision I ZR 75/10, Oscar, of 3.8.2012.
(6) Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions.