Oberster Gerichtshof, Urteil vom 11/03/2010 3 Nc 9/10v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0030NC00009.10V.0311.000
Date: 2010-03-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0311(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian creditor obtained a judgment having the force of res judicata from the Bezirksgerichts Hall of Tirol (AT) against the debtor, domiciled in Germany, that prohibited the debtor from interfering with the creditor's enjoyment of his real property by parking a truck on it. The creditor pleaded the original court with new allegations of trespassing on his property, and petitioned for an enforcement order with the goal of having a fine set for future instances of trespass. The Bezriksgericht denied the petition. The petitioner subsequently petitioned the Oberster Gerichtshof (AT) for a declaration of local jurisdiction of the court (a so-called "Ordination").
The Oberster Gerichtshof denies the petition for a declaration of jurisdiction. Even in matters involving enforcement, a declaration of jurisdiction is only possible when, although domestic jurisdiction over the enforcement (of injunctive relief) should be affirmed, there is a lack of a clear candidate for a domestic court of local jurisdiction. The enforcement measures that the creditor has petitioned, however, fail for lack of international jurisdiction of the Austrian courts. The subject matter of the enforcement is not a concrete, remediable, injurious circumstance, but the danger of continuing infringements via the alleged, repeated infringement described above. Austrian law confers jurisdiction for the imposition of sanctions against such behaviour exclusively on the court of the domicile of the debtor. As that lies in Germany, international jurisdiction of the Austrian courts is not justified. That enforcement measures in Germany require proof of a violation of the enforcement order does not change this. In particular, there is nothing unreasonable within the meaning of Article 34 Brussels I Regulation about enforcement measures in Germany that must be taken into account.