Oberster Gerichtshof, Beschluß vom 05/06/2007 # 10 Ob 40/07s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0100OB00040.07S.0605.000
Date: 2007-06-05
Based on: Merger Treaty (1965)
Subject matter: Judicial cooperation in civil matters
Concepts: Judicial cooperation in civil matters
Origin: Austria

82007AT0605(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian companies V. and W. had concluded an agreement according to which W. had to (re-)construct a wind power plant for V.. The agreement contained a jurisdiction clause in favour of the courts of Vienna (AT). W. assigned its rights and obligations arising from the agreement to its parent company P.. The latter again assigned its rights and obligations to a company F., the defendant. The plaintiff for its part, had acquired V.'s rights and obligations arising from the contractual relationship. The plaintiff as well as the defendant are companies having their seat in Germany. The plaintiff put forward various claims for payment and performance of services arising from the contractual relationship. It commenced proceedings before the Handelsgericht of Vienna (AT) which had been stipulated in the jurisdiction agreement. As the action was dismissed by the lower courts, the plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that in order to determine whether the jurisdiction agreement is valid, the moment of the institution of proceedings has to be considered. In this case two German companies have brought proceedings before an Austrian court and the Brussels I Regulation applies. It is irrelevant that originally the case was purely domestic involving two Austrian companies. The plaintiff seeks the performance of contractual obligations from the defendant, which the latter had assumed by taking over performance. With regards to the plaintiff as beneficiary this assumption has the effect of a cumulative assumption of debt alongside the originally obligated party. However, different from a legal succession, this does not lead to an extension of the jurisdiction agreement. As the defendant did not itself conclude the jurisdiction agreement, the latter cannot be held against it.