OGH; 2020-02-28; 2 Nc 1/20z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2020:0020NC00001.20Z.0228.000
Date: 2020-02-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT0228(51)_ENG_SUMJURE
JURE summary
JURE summary
Several private persons domiciled in Austria (hereinafter ‘the plaintiffs’) filed an action against a Serbian air carrier domiciled in Belgrade (hereinafter ‘the defendant’) seeking compensation due to a delay of more than three hours on their flight from Wien-Schwechat to Belgrade.
Having regard to the cost of proceedings, the plaintiffs filed an application with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) requesting that the Supreme Court appoint a competent court under Article 28(1)(2) of the JN (1), claiming that they were consumers with habitual residence in Austria whereas the defendant was domiciled outside the EU. For this reason, jurisdiction under Article 7(1) of the Brussels I Regulation (recast) (2) (place of performance) could not be applied. In addition, a decision made by Serbian courts would not be enforceable in Austria due the lack of any enforcement agreement between Austria and Serbia.
The argument of the plaintiff that the defendant had been regularly taking planes to Austria did not give rise to the existence to a quasi in rem jurisdiction (Gerichtsstands des Vermögens) under Article 99(1) of the JN.
In previous similar cases (3), the Supreme Court decided against an air carrier domiciled in Serbia in favour of the plaintiffs and appointed the Bezirksgericht Schwechat to be the competent court. Article 28(1)(2) of the JN was meant to cover situations where legal protection under domestic law was required despite the lack of domestic jurisdiction due to a close connection of the case with Austria and the impossibility to file an effective action abroad. In particular if the plaintiffs were consumers and the increased costs of proceedings conducted abroad were to be taken into account.
The Supreme Court followed its previous conclusion also in this case and appointed the Bezirksgericht Schwechat to be the competent court holding jurisdiction.
(1) Gesetz vom 1. August 1895 über die Ausübung der Gerichtsbarkeit und die Zuständigkeit der ordentlichen Gerichte in bürgerlichen Rechtssachen (Act of 1 August 1895 on the allocation of jurisdiction and the territorial jurisdiction of the ordinary courts in civil matters).
(2) 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.
(3) ECLI:AT:OGH0002:2019:0060NC00025.19G.0913.000, ECLI:AT:OGH0002:2019:0050NC00013.19K.0902.000 and ECLI:AT:OGH0002:2019:0060NC00001.19B.0211.000.