Oberster Gerichtshof; 2014-04-23; A., AG; B., GmbH; 4 Ob 52/14x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0040OB00052.14X.0423.000
Date: 2014-04-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT0423(51)_ENG_SUMJURE
JURE summary
JURE summary
In January 2012, an Austrian public limited, who acts as a transmission grid operator, (“the plaintiff”) sued an Austrian company with limited liability (“the defendant”) in the Eisenstadt regional court (hereinafter “Court of First Instance”) for payment of the remaining system services for the period from March 2009 to December 2009 (action for performance). Already in May 2010, the defendant brought action against the plaintiff in the Commercial Court Vienna (Handelsgericht Wien) to the declaration that the defendant was not obliged to pay the system service fees retained by the defendant for the months January 2009 to December 2010 (negative declaratory action). In the Verfassungsgerichtshof (hereinafter “Constitutional Court”), the Commercial Court Vienna challenged individual provisions of the system utilization regulation 2005 (as amended in 2009, “Systemnutzungsverordnung 2005”), which underlies the contested claim. The Constitutional Court repealed the regulation entirely because of challenges in other proceedings.
The Court of First Instance dismissed the action brought by the plaintiff. In this action, the defendant raised the plea of the dispute pending. The system usage fees coveted with the action for performance are covered by the negative declaratory action (the action in the Commercial Court Vienna pending in first instance). The Court of First Instance was inclined to the view of the defendant, that the Commercial Court Vienna will finally decide the need for the payment of the system service fees.
The appeals court (Oberlandesgericht Wien) rejected the plea of the pending of the dispute and changed the decision of the Court of First Instance. In the appeals court’s view, a declaratory action did not cause a dispute to be pending for the later action for performance because the judgement from the declaratory action lacked enforceability and the objective of legal protection of the action for performance, which thus went beyond the objective of the declaratory action. However the regular appeal was admissible. In the appeal, the defendant lead against the appeals court’s decision that the legal objects of the action for performance and the declaratory action were identical because both actions referred to the same claim.
According to the defendant’s opinion, the relevant provision of § 233 of the Civil procedure code (hereinafter “ZPO”), (quote § 233 ZPO par. 1: “The status of a dispute pending has the effect that another dispute asserting the same claim must not be carried out at neither the same court nor at another while the dispute is still pending. An action for the same claim brought during a dispute pending shall be rejected upon request or by virtue.”) is to be interpreted in accordance with Article 27 of the Council Regulation (EC) No 44/2001 of 22. December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters ("Brussels I Regulation”), (“Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the Court of First Instance seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.”). Interpreting Article 27 of the Brussels I Regulation, the Court of Justice of the European Union has decided in this dispute that the negative declaratory action implied dispute pending for the subsequent action for performance. Hence the plaintiff lacked a need for legal protection in the action for performance. The plaintiff could not even argue with the risk of limitation because the plea of fraudulent intent would stand against a possible limitation defence. Additionally, the repeal of the system utilization regulation, which underlies the claim in the action for performance, is to be noted after the first instance procedure’s completion. The concept of occurrence not only affected the action referred to by the Constitutional Court, but the whole subject, which underlies this action.
However the plaintiff claimed that the action for performance’s legal objective went beyond that of the declaratory action and that the claim’s identity was excluded in the sense of § 233 ZPO. Moreover the complaints’ legal objects were different. In this case, the negative declaratory action was about the non-existence of the obligation to pay only. While there were also other legal bases (e. g. contract law and unjust enrichment law) in the action for performance. The plaintiff added that the effect of occurrence of repealing the regulation did not affect the present action, that limitation was looming and that the interpretation of the Article 27 of the Brussels I Regulation was not to be transferred to the national procedural law. The Oberster Gerichtshof (Supreme Court of Justice of Austria, hereinafter the “Supreme Court”) has expressed that it was admissible to appeal to clarify the legal situation. However this appeal was not entitled. The Supreme Court’s decision was based on its own numerous judgements.
The same claim is existent (requirement of dispute pending) when not only the parties are identical, but also the claim asserted in the actions. And that in the desire and the constitutive situation as well (see decision 1 Ob 217/75).
As such, the underlying substantive claim is irrelevant. In the action, the court will not decide on the private law relationship, but rather on a claim derived from it (see decision 1 Ob 217/75). However, the status of dispute pending is existent if the desires are, although not identical, but regularly, with swapped roles of the parties, if one desire is the conceptual opposite of the other. This is true for a negative and a positive declaratory action (e. g. determination of the non-existence of a lease in the first action and finding of the existence of the same lease in the second action, see decision 4 Ob 563/94).
Dispute pending exists also when the (procedural) claim asserted later is decided finally by the final decision in the earlier action (see decision 3 Ob 501/85). So a potential binding effect of the decision in the first action is not sufficient for the adoption of dispute pending status (see decision 5 Ob 671/82).
A decision on the negative declaratory action would not result in an enforceable title of the plaintiff’s payment claim. The plaintiff can obtain an enforceable title against the defendant only through an action for performance; hence this action would not fail due to double jeopardy. In the second action, double jeopardy would not be considered, but the binding effect of the preceding decision would be. However that excludes the adoption of dispute pending. In another case, if an action for performance was brought first and rejected, any subsequent negative declaratory action would be finally decided already (see decision 3 Ob 519/53). In this respect, the order of action matters.
The Senate, which decided this case, considered multiple jurisdictions, of which some examples are listed in the text above, as base for its decision. Concerning the parallels between § 233 ZPO and Article 27 of the Brussels I Regulation, the Supreme Court argues that the basis of both provisions is very similar. Although the international provision is focused much more on competence for the decision on a broadly understood “same claim” in the Court of First Instance. Above all, Article 27 of the Brussels I Regulation exists to avoid that there are conflicting decisions on the same case in courts of different Member States. Austrian law provides several mechanisms to prevent divergence of decisions and unnecessary legal action expenditures, not only in § 233 ZPO.
The Supreme Court gives its view on the repealing of a regulation by the Constitutional Court. In the present case, the negative declaratory action was not the cause of the repeal, but the Constitutional Court has pronounced that the regulation is not to be applied in this action as well. The same applies to the action for performance as both actions have the same legal basis.
The Supreme Court did not uphold the defendant’s appeal. The lower courts had to assess whether or not the action for performance was to be suspended through the completion of the negative declaratory action.
The dispute pending status of a negative declaratory action (non-existence of a claim) is not an obstacle to an action for performance (performance of this claim). The repeal of a legal norm by the Constitutional Court extends to subsequent actions that have the same constitutive legal situation as well.