Oberster Gerichtshof, Beschluß vom 05/04/2005 4 Ob 13/05y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0040OB00013.05Y.0405.000
Date: 2005-04-05
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0405(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant had maintained, over a long period, a presence in the internet under various domains. The defendant registered a similarly worded domain with a slightly different spelling. The plaintiff requested injunctive relief before the Austrian courts ordering the defendant to cease using the name in commerce as a domain. The plaintiff grounded jurisdiction on Article 5 (3) Brussels I Regulation. The court seised of the matter dismissed the action without serving notice of the proceedings on the defendant on the grounds that it clearly lacked jurisdiction.
The OGH (AT) holds that, according to Article 24 Brussels I Regulation, the Court of a Member State is competent if the defendant, without asserting the lack of jurisdiction, enters an appearance. Where a defendant domiciled in one Contracting State is sued in a court of another Contracting State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction in the case that jurisdiction cannot be founded (Article 26 Brussels I Regulation). Based on the jurisprudence on the provisions of Articles 18 and 20 Lugano Convention, which have the same wording, the court seised shall also serve notice of the proceedings even if it is of the opinion at the time the action is brought that it lacks jurisdiction. International jurisdiction pursuant to the Brussels I Regulation may not be rejected of the court's own motion. The defendant, rather, must be given the opportunity to enter an appearance in the proceedings. Thus, the international jurisdiction of the court seised cannot yet be conclusively decided upon in the present case. The court seised must therefore serve notice of the proceedings, even if it is incompetent based on the facts of the action.