Oberster Gerichtshof, Beschluß vom 09/04/2002 4 Ob 40/02i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116326
Date: 2002-04-09
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0409(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, who is domiciled in Austria, invested money through a German investment company which led to the loss of part of the money. The defendants are the investment advisors and management of the investment company, who are domiciled in Germany.
The plaintiff in his action before the Landesgericht of Innsbruck (AT), the competent court at his domicile, sought the payment of damages. He alleged that the defendants had falsely represented to him that the investment was risk-free, when, in fact, it was highly speculative in nature. The plaintiff asserted the international jurisdiction of the Austrian courts on the basis of Article 5(3) Brussels Convention. He asserted that the damage had occurred to his assets, and, therefore, the place where the damage occurred was at his domicile. The action was dismissed at the first and second instance due to lack of international jurisdiction. The OGH (AT), seised by the plaintiff, stayed the proceedings and referred the question to the ECJ for a preliminary ruling of whether the term in Article 5(3) Brussels Convention "the place where the harmful event occurred" also encompasses the place where the majority of the assets of the injured party are located, in the context of damages arising from the investment of assets.
The OGH justifies its reference on the grounds of the jurisprudence of the ECJ concerning the question of to what extent the forum of Article 5(3) Brussels Convention refers to the habitual residence of the injured party as the place where his/her assets which have been damaged are located. The ECJ has answered this in the negative in the case where a distinction can be made between direct and indirect damages. The peculiarity of the case of the plaintiff is that the losses of the investment directly led to damages to his entire assets. The ECJ has not yet ruled regarding such a scenario. Therefore, a reference is necessary.