Oberster Gerichtshof, Beschluss vom 24/11/2009 5 Nc 15/09i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0050NC00015.09I.1124.000
Date: 2009-11-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT1124(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff filed claims against the defendant with the Bezirksgericht of Schwechat (AT) for damages in compensation for pain and suffering. The court agreed that the Austrian courts have international jurisdiction, but nevertheless dismissed the action for lack of local jurisdiction. Thereupon, the plaintiff petitioned to transfer the case to the Bezirksgericht of Pregarten (AT) and filed at the same time a motion to the OGH (AT) to determine the locally competent court. The matter was ensuingly transferred to the Bezirksgericht of Pregarten, which presented the files along with the motion asking the court to determine local jurisdiction, to the OGH (AT).
The OGH considers it unnecessary to decide on the petition for determination of local jurisdiction. Under Article 24 Brussels I Regulation, a court has jurisdiction if a defendant submits to the proceedings before the court. This applies to local jurisdiction as well. Therefore, a court may not evaluate a claim on its own initiative in limine litis and dismiss the case a limine for lack of jurisdiction in cases where the lack of international or territorial jurisdiction is curable under Article 24 Brussels I Regulation. Under Article 5(3) Brussels I Regulation, merely an uncontested appearance can establish local jurisdiction. A dismissal a limine is therefore only permissible in the framework of Brussels I Regulation when the courts of another Member State have exclusive jurisdiction pursuant to Article 22 Brussels I Regulation. That is not the case here. The present situation presents the possibility, such that the defendant may enter an uncontested appearance and thereby establishes local jurisdiction. It is therefore not necessary at this time to decide on the petition to accept jurisdiction.