Oberster Gerichtshof; 2018-01-24; 7 Ob 1/18z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0070OB00001.18Z.0124.000
Date: 2018-01-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT0124(52)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns a liability action brought by several plaintiffs, Ing. PV, Bc. AV and five other companies (hereinafter ‘the plaintiffs’) against members of a creditors’ committee (hereinafter ‘the defendants’) before the Landesgericht Krems an der Donau (hereinafter ‘the Court of First Instance’). By their action, the plaintiffs sought a declaration that the defendants were liable for damages caused by their unlawful rejection of a restructuring plan as members of the creditors’ committee in the restructuring proceedings of V. s.r.o., a company in bankruptcy under Slovak law.
Before the Court of First Instance, the plaintiffs invoked the defendants’ liability under Section 420 of the Slovak Civil Code (1) and jurisdiction under Articles 4 and 8 of the Brussels I Regulation (recast) (2). The Court of First Instance dismissed the action due to a lack of international jurisdiction. According to the Court of First Instance, the option of a joint procedure to the insolvency proceedings is excluded from the scope of the Brussels I Regulation (recast) pursuant to Article 1(2)(b) of the regulation, which provides that the regulation shall not apply to bankruptcies, settlements and similar proceedings.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) upheld the decision of the Court of First Instance, ruled that the appeal was admissible and stated that there is no supporting case-law as to whether a liability claim should be regarded as an insolvency-like joint proceeding.
As a result, the plaintiffs filed an appeal to the Obersten Gerichtshof (hereinafter ‘the Supreme Court’). They requested a declaration of the substantive and territorial jurisdiction of the Court of First Instance.
As a result, the Supreme Court requested that the Court of Justice of the European Union (CJEU) make a preliminary ruling on the application of Article 1(2)(b) of the Brussels I Regulation (recast) regarding jurisdiction in the present case and stayed the proceedings pending the preliminary ruling. The CJEU replied by a judgment in Case C-649/16 (3) as follows: ‘Article 1(2)(b) of Regulation (EU) No 1215/2012 must be interpreted as meaning that it applies to an action for liability in tort brought against the members of a committee of creditors because of their conduct in voting on a restructuring plan in insolvency proceedings, and that such an action is therefore excluded from the scope ratione materiae of that regulation.’ Following the preliminary ruling of the CJEU, the appeal was continued. The Supreme Court considered that jurisdiction in this case was to be established under Article 1(2)(b) of the Brussels I Regulation (recast) (vis attractiva concursus) in conjunction with Article 3(1) of Regulation (EC) No 1346/2000 on insolvency proceedings (lex fori concursus) and that the lower courts therefore correctly declared that the Austrian courts had no international jurisdiction in this case.
The appeal of the plaintiff was not granted.
(1) Zákon č. 40/1964 Zb., Občiansky zákonník (Civil Code).
(2) 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.
(3) Judgment of the Court of 20 December 2017, Peter Valach and Others v Waldviertler Sparkasse Bank AG and Others, C-649/16, ECLI:EU:C:2017:986, paragraph 40.
(4) Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.