Oberster Gerichtshof, Beschluß vom 11/12/2007 5 Ob 267/07m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:RS0123121
Date: 2007-12-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT1211(04)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is an owner's association of premises situated in Austria, furnished with a legal personality according to Austrian law. It commenced proceedings before the Austrian court having jurisdiction over the place where the property is situated against a homeowner domiciled in Germany seeking payment of homeowner fees in arrears. Together with the action for payment, it applied for the notation of the action in the land register with regards to the shares of the defendant co-owner. The defendant challenged the international jurisdiction of the Austrian courts. The appellate court dismissed the challenge and accepted jurisdiction. The defendant appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It states that the concept of rights in rem in Article 22(1) Brussels I Regulation has to be interpreted in an autonomous way according to the ECJ's jurisprudence (ECJ 10.01.1990 - 115/88 - Reichert/Dresdner Bank). It has to be distinguished between rights in rem in immovable property and mere in personam rights, which can arise in relation to immovable property. The OGH explains the inconsistent literature and the German jurisprudence with regards to this matter, which qualifies the claim of an owner's association for payment of homeowner's dues as right in personam. However, it holds that in Austrian law it has to be considered that the notation of the action in the land register leads to the activation of a lien of the owner's association over the property of the co-owner in default. Thus, it has to be assumed that the action relates to a right in rem over which the courts at the place where the property is situated have jurisdiction according to Article 22(1) Brussels I Regulation.