Oberster Gerichtshof, Urteil vom 16/03/2007 6 Ob 38/07t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:RS0121970
Date: 2007-03-16
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT0316(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A German manufacturer commenced proceedings against his former Austrian distributor before the Austrian court at the latter's seat seeking the payment of the purchase price for goods delivered to him. The defendant set-off claims for indemnity and damages based on the distribution agreement against the claim for payment of the purchase price. With regards to the part of his claim which exceeded the amount claimed by the plaintiff, he brought a counterclaim. The lower courts dismissed the counterclaim for lack of international jurisdiction. The counterclaimant appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that jurisdiction over the counterclaim cannot be established according to Article 6(3) Brussels I Regulation. The requirement that the counterclaim has to rise from the same contract or facts on which the original claim was based, has to be narrowly interpreted. In a case where in the counterclaim indemnity and damages based on a distribution agreement are sought, while the action for payment is aimed at the implementation of claims which arose from delivery contracts between the parties, this requirement is not fulfilled. It is furthermore not possible to substitute the requirement of a close connection within Article 6(3) Brussels I Regulation with concerns for procedural economy. According to the ECJ's jurisprudence (ECJ 13.07.1995 - 341/93 - Danvaern) it is unconditionally admissible to set off with not connected counterclaims so that under the aspect of the set-off, the claims of the distributor have to be determined. However, this does not establish jurisdiction over the determination of the counterclaim with regards to the part of the claim exceeding the plaintiff'sclaim.