Oberster Gerichtshof; 2015-05-27; Dr. S. S.; General Dental Council; 6 Ob 38/15d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0060OB00038.15D.0527.000
Date: 2015-05-27
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT0527(01)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian natural person (the "plaintiff") sought damages from a body of public law established in the United Kingdom (the "defendant"), which regulates the professional practice of dentists and dental care professionals and maintains a public register for this purpose. The defendant had removed the plaintiff unfairly from the list of dentists in the United Kingdom and published this decision, which caused her great defamation.
The Court of First Instance is factually and locally competent in the sense of Article 5(3) of the Brussels I Regulation (1) because the publication of the removal is available on the internet worldwide and libel is possible in each Member State.
The defendant disputed the domestic jurisdiction beforehand. The plaintiff had hidden a disciplinary procedure in the Netherlands and the removal from the Dutch dentist's register as a result of registration as a dentist in the United Kingdom.
The Court of First Instance (Landesgericht Salzburg) dismissed the claim and rejected the plea of lack of jurisdiction. In accordance with Article 5(3) of the Brussels I Regulation, the Court of First Instance was competent. The defendant was authorised to publish its decision on the internet. After examining the case's background, it could not be confirmed that the claimed damages were related to the defendant's procedure.
On the occasion of the appeal, the Court of Appeal (Oberlandesgericht Linz) annulled the judgement of the Court of First Instance, including the proceedings, and rejected the action. In the explanatory memorandum, the Court of Appeal held that the inadmissibility of the legal action as a process obstacle in every state of the proceedings was to be regarded as invalidity by virtue also in higher instances.
The defendant's exercise of disciplinary power over dentists in the case of compulsory membership is a legal relationship of public law nature and is equivalent to a sovereign activity. The British registry of dentists publicly run by the defendant fulfils the conditions laid down in Article 22(3) of the Brussels I Regulation and therefore, only the courts in the United Kingdom are competent for any disputes.
The plaintiff's appeal on points of law is admissible, but not entitled.
In the decision, the Oberster Gerichtshof ("OGH") leads that the Brussels I Regulation refers to civil and commercial matters that are not excluded from its scope. In this context, there is a sovereign action only if the state uses means that are not available to private individuals and corporations.
The unilateral arrangement of certain legal consequences, without the addressee's consent being necessary, is such a means.
In the present case, publication of the defendant's decision is a sovereign act, so that the Brussels I Regulation is not applied at all. Therefore, it is irrelevant whether or not exclusive jurisdiction exists in accordance with Article 22(3) of the Brussels I Regulation.
The OGH did not follow the plaintiff's appeal on points of law.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in the version valid until 09.01.2015.