Oberster Gerichtshof, Beschluß vom 25/11/2008 1 Ob 112/08i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0124417
Date: 2008-11-25
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT1125(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiffs, domiciled in Slovenia, sued an insurance company domiciled in Ireland in an action for a declaration of the cancellation of an insurance contract and the return of insurance premiums paid. The action was also directed against an Austrian company which the plaintiff claimed was involved in the conclusion of the litigious insurance contract. The plaintiffs claimed that the Landesgericht of Klagenfurt (AT), which was seised of the matter, had jurisdiction on the basis of Article 8 in connection with Article 5(5) Brussels I Regulation. They claimed that the Austrian company was to be considered a branch of the Irish insurer. In addition, according to their opinion, the requirements of Article 6(1) Brussels I Regulation are met. The Irish insurer challenged the international jurisdiction of the court seised. While the court of first instance assumed jurisdiction, the OLG of Graz (AT) dismissed the action against the Irish defendant on appeal. The plaintiffs lodged an appeal on a point of law against this to the OGH (AT).
The OGH overturns the decision of the court of appeal and refers the matter back to it. It holds firstly that jurisdiction cannot be founded on the forum in relation to multiple defendants in Article 6(1) Brussels I Regulation, as this is excluded by the special provisions regarding insurance matters in Articles 8 – 14 Brussels I Regulation. It depends, therefore, on whether the Austrian company is to be considered a branch of the insurer in terms of Article 5(5) Brussels I Regulation referred to in Article 8. In regards to this it must be determined whether it can be assumed that a branch exists from whose operation the litigious insurance relationship arose, taking the manifold peculiarities of the insurance industry into account. In this regard, a further examination of the facts is required and therefore the proceedings are referred back to the court of appeal.