Oberster Gerichtshof; 2024-02-22; 5 Ob 73/23f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2024:0050OB00073.23F.0222.000
Date: 2024-02-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82024AT0222(51)_ENG_SUMJURE
JURE summary
JURE summary
Two aggrieved shareholders (hereinafter referred to as ‘the plaintiffs’) sought damages in the amount of EUR 302 742.29 from the former supervisory board member of W* AG domiciled in Austria (hereinafter referred to as ‘defendant 1’) and the auditor of W* AG domiciled in Germany (hereinafter referred to as ‘defendant 2’) jointly and severally in exchange for the transfer of 70 shares.
The plaintiffs had suffered harm as a result of the acquisition of the shares in W* AG and the subsequent fall in the share price, claiming that defendant 1 did not properly fulfil his supervisory duties, while defendant 2 submitted unqualified audit reports despite known manipulations.
The Handelsgericht Wien (hereinafter ‘the Court of First Instance’), seised pursuant to Article 7(2) and Article 8(1) of the Brussels I Regulation (recast) (1), dismissed the action against the second defendant and declared its own lack of international jurisdiction. The damage had not occurred in Austria, as the share purchases had been processed via a German bank. Although the first plaintiff decided to buy in Austria, the economic loss had occurred in Germany. The action against the first defendant only served to create a place of jurisdiction for the action against the second defendant.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) upheld the decision of the Court of First Instance. It held that jurisdiction was not established under Article 7(2) of the Brussels I Regulation (recast) because the damage had not occurred in Austria (2). Furthermore, the invocation of Article 8(1) of the Brussels I Regulation (recast) was considered abusive as the plaintiffs had only brought the action against the first defendant in order to establish jurisdiction over the second defendant (3).
The plaintiff pursued its claim further by filing an extraordinary revision with the Oberste Gerichtshof (hereinafter ‘the Supreme Court’), which overturned the decisions of the lower courts.
Since both defendants were held cumulatively liable for the damage, there was a sufficient factual connection to justify the venue of the joint action. The decision to hear the proceedings against both defendants jointly was based on the assumption that separate proceedings could lead to conflicting decisions. The plaintiffs also legitimately asserted their rights against defendant 1 and the attempt to establish international jurisdiction over defendant 2 did not constitute an abuse of rights.
The Supreme Court amended the decisions of the Court of First Instance to the effect that the objection of international lack of jurisdiction of the Court of First Instance with regard to defendant 2 was rejected and the Court of First Instance was ordered to continue the proceedings against defendant 2 as well, waiving the grounds for dismissal.
(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.
(2)  Matters relating to tort or delict.
(3) Joinder of parties.