Oberlandesgericht Wien, Urteil vom 17/10/2003 3 R 151/03b
Decision by national courts in the field of European Union law — ECLI:AT:OLG0009:2003:RW0000598
Date: 2003-10-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82003AT1017(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is the liquidator of a company, having its seat in Germany. The plaintiff brought an action in Austria against the sole shareholder and director of the insolvent company. He alleged that after the company became insolvent, the director made payments to himself as a shareholder. These payments constituted a repayment of equity-replacing loans, as a result of which, the insolvency creditors have been disadvantaged. The plaintiff sought to set aside the payments and demanded from the defendant repayment to the insolvency estate. In first instance, the action was dismissed for lack of international jurisdiction of the Austrian courts. The court held in particular, that according to Article 1(2) (b) Brussels I Regulation the Regulation did not apply to bankruptcy and analogous proceedings. The exclusion of “analogous proceedings” also refers to civil proceedings, which directly arise from bankruptcy proceedings, as an action by the liquidator to set aside transactions.
The Oberlandesgericht of Vienna (AT) confirms this interpretation of the Brussels I Regulation. It holds that pursuant to the prevailing opinion, actions brought by the liquidator to set aside transactions by the insolvent company do not fall within the Brussels I Regulation due to the exclusion in its Article 1(2) (b) ("bankruptcy, judicial arrangements, and analogous proceedings"). As the European Insolvency Regulation does not regulate international jurisdiction over such actions to set aside either, the lex fori concursus has to be applied. Pursuant to the accordingly applicable German law, and due to the lack of exclusive jurisdiction of the insolvency court, the court at the seat or domicile of the defendant, i.e. Austria, has international and local jurisdiction.