Oberster Gerichtshof; 2018-05-16; 2Ob149/17a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0020OB00149.17A.0516.000
Date: 2018-05-16
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT0516(51)_ENG_SUMJURE
JURE summary
JURE summary
By its action, a public agency established in Austria (hereinafter ‘the plaintiff’) sought remuneration of sick pay (plus employer's contributions) from an insurance company established in France (hereinafter ‘the defendant’). An Austrian cyclist, whose employer was the plaintiff, was involved in a traffic accident in Italy and suffered multiple injuries. The vehicle involved in the accident was insured by the defendant against liability.
The Landesgerichts Klagenfurt (hereinafter ‘the Court of First Instance’) based its international jurisdiction on Article 11(2) (1), in conjunction with Article 9(1)(b) (2) of the Brussels I Regulation (3).
The defendant contested the lack of international jurisdiction by arguing that the plaintiff is not the directly injured party and cannot be regarded as the disadvantaged party due to its commercial activity within the meaning of Chapter II, Section 3 of the Brussels I Regulation.
The Court of First Instance dismissed the defence of the defendant. It ruled that the claims for damages are to be assessed according to Italian law as the plaintiff merely asserts a claim derived from its employee and has the choice of jurisdiction at its disposal. It is irrelevant whether it is a large or a small company.
The Oberlandesgericht Graz (hereinafter ‘the Court of Appeal’) changed the decision to uphold the plea of lack of domestic jurisdiction and rejected the action. It held that the plaintiff is not to be regarded as ’economically weaker and ‘less experienced in legal matters’.
The appeal brought by the plaintiff against the decision of the Court of Appeal was considered admissible and also justified by the Oberste Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’).
The Supreme Court's decision invoked the case-law of the Court of Justice of the European Union (4). A social security institution, acting as statutory assignee of the rights of the directly injured party in a motor accident, cannot rely on Article 9(1)(b) and Article 11(2) of the Brussels I Regulation in order to bring an action directly in the courts of its Member State of establishment against the insurer of the person allegedly responsible for the accident, where that insurer is established in another Member State. The party cannot be regarded as economically weaker and less experienced legally.
A discrepancy results from the response of the Court of Justice of the European Union (5) to two questions raised by the Supreme Court.
The relevant articles of the Brussels I Regulation must be interpreted as meaning that an employer, established in one Member State, which continued to pay the salary of its employee absent as the result of a road traffic accident and to which have passed the employee’s rights with regard to the company insuring the civil liability resulting from the vehicle involved in that accident, which is established in a second Member State, may, in the capacity of ‘injured party’, within the meaning of Article 11(2), sue the insurance company before the courts of the first Member State, where a direct action is permitted, regardless of the size or legal form of the employer.
The Supreme Court amended the decision of the Court of Appeal to that of the Court of First Instance.
(1) ‘Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.’
(2) ‘An insurer domiciled in a Member State may be sued, in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled.’
(3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(4) Judgment of the Court of 17 September 2009, Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG, C-347/08, ECLI:EU:C:2009:561, paragraph 41.
(5) Judgment of the Court of 20 July 2017, National Hospitals Establishment - KABEG v Mutuelles du Mans assurances - MMA IARD SA, C-340/16, ECLI: EU: C: 2017: 576, paragraph 39.