Oberster Gerichtshof, Entscheidung vom 15/02/2007 6 Ob 266/06w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:RS0121818
Date: 2007-02-15
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT0215(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff publishing company periodically publishes the paper "The S.". The defendant is a person who is well known in Austria due to various scandals. He was mentioned by name in an article in "The S." relating to a spectacular criminal action. Thereupon, the defendant sought from the plaintiff to refrain from mentioning his name. On 20.08.2004 the defendant applied to the Landgericht of Berlin (DE) for a prohibitory injunction against the plaintiff. On 17.08.2004 the plaintiff, for its part, had already commenced proceedings before the Handelsgericht of Vienna (AT) against the defendant seeking a declaration that the latter did not have a claim for a prohibitory injunction as alleged. As the court lacked functional jurisdiction, the proceedings were referred to the competent civil court of Vienna (AT) upon the plaintiff's application. The plaintiff appealed to the OGH (AT) against the judgments by the lower courts which had dismissed the action.
The OGH (AT) allows the appeal in part. It holds that the German interlocutory proceedings are not opposed to the proceedings before the Austrian courts. Proceedings for an interim injunction and proceedings on the merits do not involve the same cause of action for the purpose of Article 27 Brussels I Regulation. Thus, interlocutory proceedings do not oblige the court seised with the main proceedings to stay the proceedings before it. Furthermore, the Austrian proceedings were instituted earlier according to Article 30 Brussels I Regulation. It is irrelevant that the plaintiff at first instituted proceedings before a court lacking jurisdiction, as it immediately took the required steps for a referral to the competent court. Thereby, the established pendency was not affected. The OGH accedes to the claim in part, as it holds that the article which the defendant complained about did not infringe his personality right.