Oberster Gerichtshof, Urteil vom 11/05/2011 7 Ob 203/10v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:RS0126976
Date: 2011-05-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0511(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, a company registered in Austria, is a subsidiary undertaking within a larger body of undertakings. It concluded an insurance contract with an insurer which was registered in Germany to insure construction equipment and other property against unforeseen damage, including misappropriation. The insurance contract stipulated the application of German law and a jurisdiction agreement in favour of the courts at the registered office of the insurer. Invoking Article 9(1)(b) Brussels I Regulation, the claimant brought an action before the Landesgericht of Wels (AT) against the defendant for indemnity for various misappropriated pieces of equipment. The defendant relied on the jurisdiction agreement and raised a jurisdictional challenge. The Landesgericht of Wels and, at second instance, the OLG of LInz (AT) dismissed the action for lack of jurisdiction. The claimant lodged an appeal to the OGH (AT).
The OGH dismisses the appeal. The claimant may only bring an action in the forum of Article 9(1)(b) Brussels I Regulation if the jurisdiction agreement were to be invalid. According to Article 13(5) Brussels I Regulation, such an agreement may be validly concluded in the cases governed in Article 14. This is true in particular for the case governed in Article 14(5) that an insured company exceeds the minimum size laid down therein. In this regard, reference should be made to the date of the conclusion of the jurisdiction agreement whose validity is at issue. The reference in Article 14(5) to the Directive 73/239/EEC is dynamic in nature and includes any subsequent amendments to it, whereby the date of the entry into force of an amending directive rather than its implementation is the relevant factor. The claimant's balance sheet data far exceed the minimum size. Therefore, the balance sheet of the consolidated accounts of the body of undertakings, to which reference should normally be made regarding subsidiary undertakings, is no longer relevant.