OGH; 2019-11-26; 4 Ob 173/19y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2019:0040OB00173.19Y.1126.000
Date: 2019-11-26
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82019AT1126(51)_ENG_SUMJURE
JURE summary
JURE summary
An Italian national living in South Tyrol (hereinafter ‘the plaintiff’) filed an action against a municipality in South Tyrol (hereinafter ‘the defendant’) seeking a cease and desist order, the provision of accounting information and a payment.
The plaintiff complained that the defendant used its photographic work – a photo of a castle in South Tyrol, Italy, the author of which was the plaintiff – without providing any details regarding the author and without the consent of the author by making it public on its webpage accessible also in the district of the court seised, the Landesgerichts Feldkirch (hereinafter ‘the Court of First Instance’), thus violating the plaintiff’s copyright.
The defendant contested the lack of the international and local jurisdiction of the Court of First Instance.
The Court of First Instance dismissed the objection of the lack of the international jurisdiction. The possibility to open the respective internet sites in Vorarlberg was enough to give rise to the jurisdiction under Article 7(2) of the Brussels I Regulation (recast) (1).
The Oberlandesgericht Innsbruck (hereinafter ‘the Court of Appeal’) denied the international jurisdiction of the Court of First Instance and dismissed the action.
The appeal of the plaintiff filed with the Supreme Court (hereinafter ‘the Supreme Court’) was found admissible and partially justified.
As the protection of copyright was in this case strictly limited to the territory of Austria, the Court of First Instance had jurisdiction according to the principle (Article 7 of the Brussels I Regulation (recast)) that even a court with limited decision competency may have jurisdiction, if such court can make the best decision due to its location within the territory of the Member State where the damage occurred.
The defendant was ordered to immediately cease and desist from disseminating and reproducing the photograph subject to the action.
This principle, however, does not apply to the claim regarding the provision of accounting information and the payment. The place of jurisdiction according to Article 7(2) of Brussels I Regulation (recast) includes, besides claims in connection with the infringement of personality rights in print media and the internet, further claims under the anti-trust law, unfair competition and intellectual property rights (2). In these cases, the place of jurisdiction is to be determined under Article 4 of the Brussels I Regulation (recast).
The Supreme Court modified the decisions of the previous instances accordingly.
(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) Judgement of the Court of Justice of 16 June 2016, Universal Music International Holding BV vs. Michael Tétreault Schilling u. a., C-12/15, ECLI:EU:C:2016:449.