OGH; 2020-01-16; 5 Ob 220/19t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2020:0050OB00220.19T.0116.000
Date: 2020-01-16
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT0116(51)_ENG_SUMJURE
JURE summary
JURE summary
A joint-stock company domiciled in Austria (hereinafter ‘the plaintiff’) sued the Hellenic Republic (hereinafter ‘the defendant’) seeking a refund payment of approximately EUR 12 million.
By adopting Act No. 4050/2012, the defendant allowed for a change of the original bond conditions upon the consent of a qualified majority of the outstanding capital, and converted the governmental bonds, including, among others, bonds acquired by the plaintiff on the secondary market in England. As a result, the original bonds had been converted to governmental bonds with significantly reduced nominal value.
According to the plaintiff, the defendant acted as a person of private law. The compulsory conversion concerned solely bonds that were subject to Greek law. However, the bonds subject to this dispute had been emitted under English law.
The seised Court of First Instance refused the objection of the defendant regarding the lack of domestic jurisdiction and dismissed the action citing a lack of international jurisdiction.
The Oberlandesgericht Graz (hereinafter ‘the Court of Appeal’) confirmed the decision of the Court of First Instance.
The extraordinary revision filed by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) claiming that the Court of Appeal had not examined the applicability of English law and that its decision, based on the opinion that the conversion was a sovereign act, was incorrect, had not met the preconditions of Article 528(1) of 1 ZPO (1) (no legal matter without importance).
According to a previously issued judgment of the Court of Justice of the European Union which dealt with the acquisition of Greece governmental bonds on a secondary market (2), the defendant had been  carrying out its sovereign rights when adopting the debt restructuring act, with sovereign acts enjoying immunity. The case was not a civil or commercial matter under Article 1(1) of the Brussels I Regulation (recast) (3).
Even though the plaintiff requested the application of English law, its claim was derived from a sovereign act under Greek law. The Court of Appeal was correct to leave the question regarding the applicable unanswered due to its legal insignificance.
The Supreme Court dismissed the extraordinary revision of the plaintiff.
(1) Zivilprozessordnung (Code of Civil Procedure).
(2) Judgment of the Court of Justice of 15 November 2018, Hellenische Republik v Leo Kuhn, C-308/17, ECLI:EU:C:2018:911.
(3) 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.