Oberster Gerichtshof, Urteil vom 28/09/2005 7 Ob 135/05m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0070OB00135.05M.0928.000
Date: 2005-09-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0928(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a company with seat in Austria, requested from the two defendants, domiciled in Germany, payment of damages. Acting as decision makers for two societies, they had assured that they had the rights of exploitation in a real property situated in Poland, on which one of the defendants through its Polish subsidiary wanted to accomplish a building project. The owners of the real property withheld their approval, whereby the expenditure for the preparatory work, which the subsidiary of the plaintiff charged to the plaintiff, had become futile. The competence of the Austrian courts allegedly resulted from Article 5(3) Brussels I Regulation, due to the financial loss suffered at the plaintiff’s seat. The court of first instance declared itself incompetent. So did the appellate court.
The OGH (AT) holds that the claim for damages resulting from culpa in contrahendo, can also be categorized as a claim in tort according to Article 5(3) Brussels I Regulation. However, even in this case the damage occurred where the parts of the assets which the plaintiff used for the failed project were situated, here Poland. The place where the damage occurred within the meaning of Article 5(3) Brussels I Regulation does not include the place where a financial loss occurred as a consequence of another damage suffered in another Contracting State. This also applies to the damage of a parent company due to losses of its foreign subsidiary, who charges the losses to the parent company.