Oberster Gerichtshof, Urteil vom 23/04/2002 5 Ob 8/02s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116612
Date: 2002-04-23
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0423(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimants and defendant were joint owners of immovable property in Austria. As a result of improvements on the property, the value of the property had to be reassessed. Because the defendant, had agreed with the claimants to sign an addendum to the property ownership contract in a registrable form, but later made signature dependant on the fulfilment of consideration not agreed to, the claimants lodged a claim before the Landesgericht of Vienna (AT) against the defendant for finding of an obligation to sign. The claimants argued international jurisdiction under Article 16(1)(a) Brussels Convention. The defendant challenged the court’s lack of international jurisdiction, and the court dismissed the claim. The claimants' appeal against this decision was unsuccessful, whereupon they lodged an appeal before the OGH (AT).
The OGH finds the appeal to be without merit. The rules regulating jurisdiction in the Brussels Convention are not to be interpreted more broadly than is necessary for their purpose. The main reason behind exclusive jurisdiction under Article 16(1) Brussels Convention is that the courts of the situs state are best placed, due to territorial proximity, to procure knowledge on the facts of the case and to apply the valid rules and conventions, which are generally those of the situs state. Article 16(1) Brussels Convention therefore only encompasses claims that concern the extent and existence of immovable property, which would confer rights in rem on such property. Consequently, it is insufficient that a right in rem is referred to or that the claim stands in connection with such a right. The claim must, without regard to regulated exceptions, be supported by a right in rem and not only by a right in personam. As the contract requiring signature, which also contains content on the transfer of rights in rem, only takes effect inter partes, jurisdiction under Article 16(1)(a) is not available.