Oberster Gerichtshof, Urteil vom 26/08/2004 3 Ob 2/04x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0119356
Date: 2004-08-26
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT0826(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is the legal receiver of a company in bankruptcy having its seat in Austria. He brought against the defendants, two former members of the management board of this company seated in Germany, actions for liability on the ground of unreasonable delay in bankruptcy proceedings. The jurisdiction is principally based on the place of occurrence of the damages according to Article 5(3) Brussels I Regulation. The court of first instance asserted its competence thereto, while the court of appeal, on the ground that the defendants alleged for the first time before it that they had been employees so that according to Article 20 Brussels I Regulation the court at their domicile would be competent, requested new ascertainment in this regard.
The OGH (AT) finds on the one hand that the examination of the international jurisdiction must start with the plaintiff’s specifications. However, the latter never argued claims on the basis of an employment agreement but always on the status of body independent thereof. Besides, it was not mentioned at all when and where an individual employment agreement of this type was concluded with the defendants and what these agreements contained, so that the particular jurisdiction of Article 20 Brussels I Regulation cannot be taken into account. Therefore the only relevant claims are based on Para 22 of the Austrian company reorganisation law (URG) or respectively on Para 25 of the Law for the limited liability company (GmbHG) and these claims constitute tortuous claims falling either within Article 5(1) Brussels I Regulation or within Article 5(3) Brussels I Regulation, according to which the legal action can be initiated at the place of performance or occurrence of the damages. However, the two places were both at the seat of the company in bankruptcy, so that in each case the jurisdiction is established.