Oberster Gerichtshof, Urteil vom 24/02/2009 4 Ob 192/08a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0040OB00192.08A.0224.000
Date: 2009-02-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0224(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The German claimant operated a roofing company. The defendants are an Austrian company, a roof construction materials supplier, and its personally liable partner. The claimant obtained materials for one of its roof constructions, built for a German customer, from the defendant company. The parties are in dispute as to who should be held responsible for the defects appearing in that roof construction. The claimant had initially lodged a claim before the Landgericht of Kempten (DE) against its customer for payment of the price of the roof construction. In this initial proceeding, the claimant reported the dispute to the defendant company. The Landgericht of Kempten held that the customer was allowed to deduct a large amount in return for the substantiated defects. This decision was legally binding. Consequently, the claimant lodged a claim before the Landesgericht of Wels (AT) against the defendants and demanded compensation for the awarded amount deducted by the customer. The Landesgericht of Wels allowed the claim, whereas the OLG of Linz (AT) dismissed the claim on appeal. The claimant appealed to the OGH (AT).
The OGH overturns the previous court's decision and allows part of the claim. The court initially discusses the extent of the effect of the decision of the Landgericht of Kempten, regulated under Article 65 Brussels I Regulation, on the Austrian proceeding. The notification of dispute during the German proceedings has the consequence that the defendants to the Austrian proceedings are not able to raise avoidance or estoppel, which they could have already raised in the German proceedings. The binding force of the German decision is to be reviewed in detail according to the German law valid for the court of first instance. As to the merits, the defendants are obliged to pay a part of the claimant’s shortfall because they violated their mandatory duty of disclosure.