OGH; 2021-11-23; 4 Ob 178/21m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2021:0040OB00178.21M.1123.000
Date: 2021-11-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82021AT1123(51)_ENG_SUMJURE
JURE summary
JURE summary
A media owner domiciled in Austria (hereinafter ‘the plaintiff’) demanded that a German subsidiary (hereinafter ‘the defendant’) of a German media group be prohibited from instigating and/or enticing third persons, namely two German companies, to terminate agreements made with the plaintiff.
Earlier, the plaintiff had been interested in purchasing a company domiciled in Munich, which the defendant subsequently acquired. The plaintiff claimed that the defendant used unfair practices when buying the company.
According to the plaintiff, the jurisdiction of Austrian courts followed from Article 7(2) of the Brussels I Regulation (recast). The defendant contested, in particular, the lack of international and local jurisdiction. The alleged unfair conduct related solely to Germany.
The Court of First Instance found itself to be lacking the international jurisdiction and dismissed the action. The conduct of the defendant concerned solely Germany and not Austria.
The Oberlandesgericht Linz (hereinafter ‘the Court of Appeal’) confirmed the decision of the Court of First Instance. With respect to distance delicts, the decisive factor was the occurrence of the primary damage, and secondary damages were to be ignored.
The extraordinary revision filed by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) did not raise any significant legal issue and was therefore found inadmissible.
The Supreme Court had already dealt with a similar matter (2) in a case where a plaintiff domiciled in Austria sued defendants in Germany and the Czech Republic, claiming that they had enticed third parties to terminate agreements with the plaintiff, relying on the occurrence of the damage in Austria. The Supreme Court, however, denied jurisdiction to the Austrian courts, stating that the unfair conduct did not happen in Austria and that the mere consequences of such conduct taking place in Austria did not establish the jurisdiction of the Austrian courts.
The Supreme Court examined the issue of whether the unfair conduct had consequences in the Austrian market also in other cases. It was to be examined whether the activities on the Austrian market had been prevented or not. The plaintiff failed to present any evidence in this regard.
The Supreme Court dismissed the revision of the plaintiff.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Decision 4 Ob 2/12s, machinery in the Czech Republic.