Oberster Gerichtshof; 2018-10-24; 3 Ob 185/18d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0030OB00185.18D.1024.000
Date: 2018-10-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT1024(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian-based investor (hereinafter ‘the plaintiff’) brought action against a bank based in London and its branch in Frankfurt (hereinafter ‘the defendant’) in the Handelsgericht Wien (hereinafter ‘the Court of First Instance’). The defendant is the issuer of the bond in which the plaintiff invested, acquiring it derivatively on the Austrian secondary market. The plaintiff makes contractual claims, since the defendant failed to redeem a sales order of the plaintiff in breach of contract, and alternatively tortious claims for damages arising from the title of the issuer’s prospectus liability, because the defendant had concealed relevant risks and information in the prospectus. The plaintiff relied on Article 15 and, alternatively, on Article 5(1) and (3) of the Brussels I Regulation(1) to establish international jurisdiction of the Court of First Instance. The defendant argued lack of international jurisdiction of the Court of First Instance.
The Court of First Instance declared itself internationally incompetent for the contractual claims as well as the tortious claims (i.e. prospectus liability claims) and rejected the action. The plaintiff lodged an appeal in the Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’). The Court of Appeal upheld the decision of the Court of First Instance. Among other things, the Court of Appeal took the view that the place of performance under Article 5(1) of the Brussels I Regulation was outside Austria, in fact in Frankfurt where the defendant, as the issuer, would be performing the characteristic service – the repayment of the bond – and because the defendant’s branch and the clearing house are located in Frankfurt.
The plaintiff lodged an appeal on points of law against the decision of the Court of Appeal in the Oberster Gerichtshof (hereinafter ‘the Supreme Court’) and requested that the international jurisdiction of the Court of First Instance be established in accordance with Article 5(3) of the Brussels I Regulation. The Supreme Court considered the question of international jurisdiction in relation to the plaintiff’s contractual claims (Article 5(1)) and its tortious prospectus claims (Article 5(3)) and consulted several decisions of the Court of Justice of the European Union (CJEU)(2,3). Due to remaining ambiguities, the procedure was suspended and a preliminary ruling concerning international jurisdiction under Article 5(3) of the Brussels I Regulation was requested from the CJEU.
The CJEU ruled that in such a situation, ‘the courts of that investor’s domicile, as the courts for the place where the harmful event occurred within the meaning of that provision, have jurisdiction to hear and determine that action, where the damage the investor claims to have suffered consists in financial loss which occurred directly in that investor’s bank account with a bank established within the jurisdiction of [Austrian] courts and the other specific circumstances of that situation also contribute to attributing jurisdiction to [Austrian] courts.’ According to the CJEU, specific circumstances include, e.g. the plaintiff’s residence in Austria, payments from her Austrian bank accounts, acquisition in Austria or via Österreichische Kontrollbank (Austrian export credit agency).
The Supreme Court then rejected the defendant’s objection of the lack of international jurisdiction and ruled that the Court of First Instance has international jurisdiction for the tortious claims under Article 5(3) of the Brussels I Regulation and that the Court of First Instance has to hear and determine the action regarding these claims. Regarding the contractual claims asserted, the dismissal of the action was confirmed.
(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.
(2) Judgment of the Court of Justice of 28 January 2015, Harald Kolassa v Barclays Bank plc, C‑375/13, ECLI:EU:C:2015:37.
(3) Judgment of the Court of Justice of 10 June 2004, Rudolf Kronhofer v Marianne Maier and Others, C-168/02, ECLI:EU:C:2004:364.