Oberster Gerichtshof; 2016-10-28; 9 ObA 118/16t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2016:009OBA00118.16T.1028.000
Date: 2016-10-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82016AT1028(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian-based limited company (hereinafter the "plaintiff") brought default action due to a violation of the agreed competition clause against a former employee resident in Slovenia (hereinafter the "defendant"). At the defendant’s new employer, she competed in the plaintiff's line of business.
The defendant raised an objection against the payment order issued by the Court of First Instance (Landesgericht für Zivilrechtssachen Graz) in good time, without legal representation. In the following written pleading, the defendant raised the objection of international incompetence, then represented by a lawyer.
The Court of First Instance rejected the action for lack of international competence.
The Court of Appeal (Oberlandesgericht Graz in Arbeits- und Sozialsachen) confirmed the decision of the Court of First Instance. According to Article 22(1) of the Regulation No 1215/2012 (¹), an employer's action may be brought only in the court of the Member State in whose territory the employee is domiciled. An entering the appearance within Article 26(1) of the Regulation No 1215/2012 did not occur, and it is not relevant whether the objection was founded or not in labour court proceedings.
The Court of Appeal allowed the appeal on points of law in the Oberster Gerichtshof (the "OGH") due to the lack of jurisdiction on whether a party’s founded objection given without legal representation must be viewed as an entering the appearance according to Article 26(1) of the Regulation No 1215/2012.
The plaintiff's appeal on points of law is not admissible.
The OGH does not agree with the plaintiff's view that the defendant had entered the appearance through the founded objection and that it justified the jurisdiction according to Article 26(1) of the Regulation No 1215/2012. The admission to the court proceedings is not given if a defendant merely asserts the lack of competence or if another court is competent to decide the case according to Article 24 (²).
According to the established case-law, even an objection that is justified in the matter against the payment order does not constitute an entering the appearance if no justification was required according to the relevant procedural rules. In the payment procedure of the Court of First Instance and in the labour proceedings of the Court of Appeal, the appeal does not require any justification according to the Austrian national regulations.
The defendant may raise the objection of international incompetence in the initial submission or in the first oral hearing at the latest. The OGH has maintained this case-law expressly in the last decision 8 Ob 39/11k, despite the concerns expressed in the literature.
The OGH rejected the plaintiff’s appeal on points of law due to a lack of a significant legal question (³).
(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, valid from 10.01.2015.
(²) Exclusive Jurisdiction, regardless of the domiciles of the parties.
(³) Article 528(1) of the Gesetz vom 1. August 1895 über das gerichtliche Verfahren in bürgerlichen Rechtsstreitigkeiten (Zivilprozessordnung – ZPO).