Oberster Gerichtshof; 2019-01-22; 10 Ob 103/08x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2019:0100OB00103.18X.0122.000
Date: 2019-01-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82019AT0122(51)_ENG_SUMJURE
JURE summary
JURE summary
A natural person (hereinafter 'the plaintiff') requested the payment of a sum of money from Greece (hereinafter 'the defendant').
The plaintiff acquired the defendant's government bonds through a commission transaction with an Austrian-based bank. As a result of a restructuring offer according to the defendant's amendment to the law, the original government bonds were exchanged for new ones of lower nominal value. The plaintiff suffered damage as a result of this arbitrary forced conversion.
The court called upon, Landesgericht für Zivilrechtssachen Wien (hereinafter 'the Court of First Instance'), in whose jurisdiction the bank account to which the interest was transferred until the time of the conversion is located, declared its lack of jurisdiction and dismissed the action. Although it is a civil case under the Brussels I Regulation – recast (1), because the plaintiff's claim is not based on a direct contractual relationship with the defendant, neither jurisdiction from a tortious act (Article 7(2) of the Brussels I Regulation – recast) nor jurisdiction from consumer claims (Articles 17 and 18 of the Brussels I Regulation – recast) are available to the plaintiff.
The Oberlandesgericht Wien (hereinafter 'the Court of Appeal') complied with the plaintiff’s appeal and rejected the objections of the lack of domestic jurisdiction and the lack international jurisdiction. The jurisdiction can be established from the place of performance (Article 7(1)(a) of Brussels I Regulation – recast).
The defendant's appeal on points of law in the Oberster Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) seeks the dismissal of the action due to lack of domestic jurisdiction, alternatively due to lack of international jurisdiction.
The appeal on points of law is admissible and justified.
If the asserted claim relates to a sovereign act by a foreign state, domestic jurisdiction cannot be established.
The plaintiff's statements in the action are relevant to the examination of international jurisdiction, in this case the place of performance in Austria. The Supreme Court suspends the proceedings and submitted questions to the Court of Justice of the European Union (CJEU) concerning the interpretation of Article 7(1)(a) of the Brussels I Regulation – recast.
This case was not within the scope of the Brussels I Regulation – recast (2). The exceptional circumstances of a severe financial crisis resulted, among other things, in a forced conversion of government bonds. This measure was taken to restructure the Greek national debt, to prevent Greece's default, and to protect the stability of the euro currency.
The defendant exercised its sovereign rights and this act is not within the scope of civil and commercial matters according to Article 1(1) of the Brussels I Regulation – recast. There is no international jurisdiction of the Court of First Instance.
As a result of the lower courts’ binding affirmation of domestic jurisdiction, the Supreme Court examined the possible jurisdiction under Austrian law. The plaintiff did not succeed in this regard either because he does not explicitly invoke such jurisdiction.
The Supreme Court complied with the defendant's appeal on points of law and restored the decision of the Court of First Instance.
(1) 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.
(2) Judgment of the Court of Justice of 15 November 2018, Hellenische Republik v Leo Kuhn, C-308/17, ECLI:EU:C:2018:911.