Oberster Gerichtshof; 2021-01-21; 5 Ob 216/20f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2021:0050OB00216.20F.0121.000
Date: 2021-01-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82021AT0121(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Austria (hereinafter ‘the plaintiff’) filed an action against a company domiciled in the United Kingdom (hereinafter ‘the defendant’) seeking that the defendant cease and desist from using its apartment contrary to its permitted use.
Both parties owned flats in a house located in the Federal State of Salzburg. The plaintiff lived in his apartment and the defendant rented its flat out for tourism purposes. The plaintiff claimed that his ownerships rights were limited as a result of the defendant renting out its apartment without the consent of the other apartments owners.
The plaintiff relied on the jurisdiction according to Article 24(1) first alternative of the Brussels I Regulation (recast) (1). The defendant contested the international and local jurisdiction.
The Bezirksgericht Zell am See (hereinafter ‘the Court of First Instance’) rejected the action citing lack of both local and international jurisdiction. The Court of First Instance stated that a legal dispute regarding a civil agreement between the flat owners regarding the use of the flats did not directly affect their material legal position.
The Landesgericht Salzburg Linz (hereinafter ‘the Court of Appeal’) upheld the appeal of the plaintiff and dismissed the objection of a lack of jurisdiction. The exclusive jurisdiction also applied to actions filed by a flat owner regarding the freedom of use of property. Despite the fact that a permitted use of an ownership apartment was based on a civil agreement between the flat owners, it had to be seen as a right in rem belonging to the respective apartment owner and enjoying a general protection. Due to the lack of previous case-law, the Court of Appeal admitted a revision to be submitted.
Based on the revision of the defendant, the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) initiated preliminary ruling proceedings with the Court of Justice of the European Union (hereinafter ‘CJEU’).
After receiving the reply from the CJEU, the Supreme Court concluded that the exclusive jurisdiction under Article 24(1) first alternative of the Brussels I Regulation (recast) could only be applied in cases where the permitted use of an apartment had effects not only solely to the other flat owners but towards third persons as well. The permitted use was based solely on the civil agreement between the owner and was stipulated in the condominium agreement. This permitted use belonged to erga omnes protected the rights of every single owner. Every change of the permitted use is subject to approval of the other owners. According to the issued ruling, the repeated short-term renting out of apartments for tourism purposes despite their being permitted for living only could represent a change subject to a previous approval.
An action seeking to prevent or order the cessation of behaviour alleged against a defendant (hereinafter ‘Eigentumsfreiheitsklage’) could be filed both against the owner seeking the change and third persons.
The Supreme Court dismissed the revision of the defendant.
(1) 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.