OGH; 2022-05-19; 9 Ob 18/22w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2022:0090OB00018.22W.0519.000
Date: 2022-05-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82022AT0519(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Austria (hereinafter ‘the plaintiff’) demanded that a member of a supervisory board of a public limited company with its registered seat in Munich (hereinafter ‘AG’) who was domiciled in Austria (hereinafter ‘defendant 1’) and another company domiciled outside of Austria (hereinafter ‘defendant 2’) provide him compensation upon his return of the shares of the AG.
Defendant 1 commissioned defendant 2 to audit the AG's financial statements and annual report. Despite many indications regarding malversation lasting for years, defendant 1 failed to use his inspection powers as a member of a supervisory board, and defendant 2 failed to take any specific steps to examine the allegations. Had the plaintiff had any knowledge of the manipulations, he would not have bought the shares of the AG, the value of which decreased in the course of time, but shares of a competitor instead.
The court seised under Article 7(2) and Article 8(1) of the Brussels I Regulation (recast) (1) (hereinafter ‘the Court of First Instance’) found itself lacking the international jurisdiction regarding the action against defendant 2 and dismissed the action to that extent. The Court of First Instance stated that the plaintiff could not rely on the general jurisdiction of defendant 1 falling into the district of the Court of First Instance regarding his claims against defendant 2 as the legal and factual situations were different.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) upheld the appeal of the plaintiff and dismissed the objection of the lack of international jurisdiction as claimed by defendant 2. The Court of Appeal stated that a sufficient connection existed to substantiate a domestic jurisdiction regarding defendant 2.
The extraordinary revision filed by defendant 2 with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was not successful.
In order to determine whether a close connection exists between two lawsuits and the risk of two different decisions in separate proceedings is given, it was necessary to examine several criteria. In this case, an identical legal situation existed – the plaintiff could reasonably substantiate that the damage occurred as a result of both defendants failing to meet their respective obligations. The same result follows from point 15 in the Whereas section of the Brussels I Regulation (recast) concerning the high predictability of rules of jurisdiction: if damage has been caused by several wrongdoers and a factual connection exists between the lawsuits against several defendants, the injured party may, under Article 81 of the Brussels I Regulation (recast), file the action against all wrongdoers at the court holding jurisdiction for just one single wrongdoer. This was the case in this dispute.
The Supreme Court dismissed the extraordinary revision filed by defendant 2 for failing to meet the preconditions set out in Article 528(1) of the ZPO (1).
(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) Zivilprozessordnung (Code of Civil Procedure).