Oberster Gerichtshof; 2014-05-22; S, GmbH; S; 1 Ob 23/14k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0010OB00023.14K.0522.000
Date: 2014-05-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT0522(51)_ENG_SUMJURE
JURE summary
JURE summary
The liquidator of an Austrian freight forwarding company’s assets (the „plaintiff“) brought action for rental fees and other claims against a corporation established in Poland (the „defendant“) for the provision of lorries in return for payment.
The jurisdiction of the Court of First Instance (Landgericht Wels, Austria) was based on the forwarding company’s headquarters where the plaintiff’s vehicles were put to disposition.
The complaint was delivered at the defendant’s director’s residence in Austria, but it was not answered within the fixed period. Hence, the Court of First Instance upheld the action by default judgement.
The appeals court (Oberlandesgericht Linz) followed the defendant’s appeal and dismissed the action regarding the rental of lorries. The defendant had argued that merely failing to act according national procedural law cannot establish the court’s jurisdiction. Nothing but the defendant’s actual deeds in the court can establish entering an appearance. As the defendant raised the lack of jurisdiction defence in the appeal against the judgement by default, this was not a remedy to the lack of international competence by entering an appearance.
The provision of lorries in return for payment was subject to Article 5(1)(a) of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation").
The claims arising from a contract can be brought before the court of the place where the asserted obligation is to be fulfilled or would have to be fulfilled. In this case, the defendant should pay the rental fees for the provision of lorries in Poland. Therefore the place of performance was in Poland. So, the Court of First Instance lacked the international jurisdiction.
The plaintiff’s appeal  is directed against the appeals court’s ruling. The appeal is admissible, but not entitled.
The Supreme Court of Justice in Austria (the “Supreme court”) confirmed the the appeals court’s opinion that the provision of vehicles for use in return for payment was not subject to Article  5(1)(b) second indent of the Brussels I Regulation by which the plaintiff argued to establish the international jurisdiction of the courts in Austria.
Furthermore, the appeals court correctly established the use of Austrian law with the present contractual relationship according to Article 4(2) of the  Rome I Regulation. If the place of performance cannot be determined, from the agreement or from the nature or purpose of the business, then the place of performance is to be at the debtor’s seat or residence according to § 905(1) of the Austrian General Civil Code (ABGB).
Delivery of the petition’s notice to the defendant’s domestic address (in Austria) itself does not mean that the defendant entered the appearance before the Court of First Instance according to Article 24 of the Brussels I Regulation. The defendant’s active deed is required and mere failure to comply with a deadline for the introduction of the defence in terms of national procedural law cannot establish international jurisdiction.
The defendant’s competence plea recorded in the appeal against the judgment by default is timely.
The Supreme Court dismissed the plaintiff’s appeal  and upheld the appeals court’s decision.
Plaintiff's appeal in paragraph 7
Translated plaintiff's appeal instead of defendant's appeal