OGH; 2019-09-29; 1 Ob 139/19a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2019:0010OB00139.19A.0925.000
Date: 2019-09-25
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82019AT0925(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Austria (hereinafter ‘the plaintiff’) sued Greece (hereinafter ‘the defendant’) seeking a payment of an amount.
The plaintiff obtained government bonds of the defendant through a domestic bank. The plaintiff claimed that due to the fact that the defendant had compulsorily converted the original bonds into bonds with less favourable conditions by adopting a new act without the consent of the plaintiff, the defendant was liable for the loss incurred to the plaintiff.
The Landgericht Klagenfurt (hereinafter ‘the Court of First Instance’) dismissed in limine the action seeking the compensation for damage on the grounds of a legislative act. The plaintiff did not contest this decision. The reply to the action, in which the defendant challenged the alleged lack of international jurisdiction of the court seised, was dismissed by the Court of First Instance for being delayed.
The Oberlandesgericht Graz (hereinafter ‘the Court of Appeal’) annulled the application of the defendant due to lack of domestic jurisdiction and dismissed the action. It further stated that the Court of Justice of the European Union (hereinafter ‘the CJEU’) had in a similar case (1) determined that the claim related to a sovereign act of the defendant and that the conditions regarding the bonds were modified lawfully.
The revision against this decision filed with the Supreme Court (hereinafter ‘the Supreme Court’) was admissible due to the fact that the annulment of the proceedings and the dismission of the action by the Court of Appeal could be challenged just like any other a resolution of a Court of Appeal of the same kind. However, the revision was not justified.
The Court of Appeal refused the domestic jurisdiction based on the information included in the action. The omission of the Court of Appeal to conduct an oral hearing did not present any flaw of the proceedings.
In connection with the Greek government bonds, the Supreme Court firstly concluded that the state did not enjoy any immunity when being sued in its position as the bond debtor to meet its bond emission obligations or compensation for damage for the failure to meet them.
Having regard to the state immunity of the defendant, the action was lacking domestic jurisdiction. The dispute did not fall under the scope of the term ‘civil and commercial matters’ under Article 1(1) of the Brussels I Regulation (recast) (2) and the international jurisdiction of the Court of First Instance was not given.
The Supreme Court did not uphold the revision of the plaintiff.
(1) Judgement of the Court of Justice of 15 November 2018, Hellenische Republik v Leo Kuhn, C-308/17, ECLI:EU:C:2018:911.
(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.