Oberster Gerichtshof, Beschluß vom 11/09/2003 6 Ob 130/03s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117948
Date: 2003-09-11
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0911(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Austria, was involved in business transactions with a trading company, having its seat in the Netherlands, and had delivered goods to the latter. The plaintiff demanded the outstanding sale price from the defendant before the Austrian courts. As the plaintiff had ended the business relationship solely as a result of the outstanding payment, the defendant sued the plaintiff beforehand for indemnity in the Netherlands. The defendant wanted to counteract the plaintiff’s claim with this claim for indemnity, and suggested an out of court set-off. Moreover, the defendant applied to stay the proceedings according to Article 21 Brussels Convention, because of the proceedings already instituted in the Netherlands. While the Court of First Instance rejected the application, the second instance held that the party's assertions with regard to the claims for set-off were in need of supplementation.
In its decision dated 22 October 2001, the OGH (AT) had firstly, on the application of the defendant, inter alia referred the question to the ECJ as to whether the defence (that part of the claim had been extinguished by set-off) could be regarded as "the same action", within the meaning of Article 21 Brussels Convention, as an action already brought in another Contracting State. The ECJ decided on 8 May 2002 (C-111/01) that objections raised from the defendant’s side must not be considered when deciding this question. On the basis of this decision, the OGH now decides that the suggestion of settlement made by the defendant must not be considered when deciding on the question of lis pendens. Only the specifics of both actions are relevant. These, however, are based on different facts (on the one hand the termination of the trader’s contract, on the other, the delivery of the goods before the termination of the business relationship) and could not therefore be viewed as identical, even in broad terms, to the matter in dispute.