Oberster Gerichtshof, Urteil vom 18/11/2008 4 Ob 203/08v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0040OB00203.08V.1118.000
Date: 2008-11-18
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT1118(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, the Bundesarbeitskammer, is an Austrian agency for the protection of consumer interests. The defendants are a general partnership with its seat in Germany, and its personally liable partners who are also domiciled in Germany. The plaintiff took an action against the defendants to force them to desist from creating the false impression that the services offered on their website to Austrian domiciled customers were free of charge, and for failure to state legally required information on their website. The plaintiff had brought the action before the courts in Vienna for an injunction and for the publication of the judgment. The plaintiff grounded the international jurisdiction of the Austrian courts on Article 5(3) Brussels I Regulation. The OLG of Vienna (AT) on second instance rejected the claim of the defendants that the court lacked international jurisdiction. The defendants made an extraordinary appeal to the OGH (AT).
The OGH dismisses the appeal. It also rejects the suggestion of the defendants that it should submit a question to the ECJ. The term "harmful event" in Article 5(3) Brussels Regulation is to be understood broadly. According to the decision of the ECJ (01/10/2002 – C-167/00 - Henkel), consumer protection organisations can take legal action for an interim injunction against parties domiciled in other Member States who infringe the law in relation to unfair competition in the state of origin. The technical form of such infringement is not relevant. Unfair commercial practices utilising a website may constitute an offence under the Austrian legal system. A consumer protection agency can avail of the jurisdiction under Article 5(3) Brussels I Regulation to prevent such an offence.