Oberster Gerichtshof, Urteil vom 29/06/2009 9 Ob 31/08m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0090OB00031.08M.0629.000
Date: 2009-06-29
Subject matter: Lugano Convention
Origin: Austria

82009AT0629(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties disputed a sales contract for Italian real estate, which, in the view of the claimant, had not been performed by the defendants. The claimant brought an action against the defendant in the Landesgericht of Wels (AT) for damages due to non-performance of the sales contract. The defendants claimed that the claimant had already brought the same action in the tribunale of Bolzano (IT) and had lost. The action had allegedly been finally dismissed by the Corte d'appello of Trento (IT) upon appeal. The Landesgericht of Wels dismissed the action as inadmissible. It held that it was procedurally barred due to the matter having been already adjudicated. Upon appeal of the claimant, the OLG of Linz (AT) overturned this judgment and remanded it to the Landesgericht for further clarification as to what exactly was the subject-matter of the final Italian judgment. The defendants lodged an appeal to the OGH (AT).
The OGH dismisses the appeal. It holds that the claimant made two applications in the Italian proceedings. In the main application, it sought an order against the defendant to transfer the ownership over the real estate to him. In the alternative, he demanded damages in the amount of 500 Million Lire or another sum deemed appropriate by the court. The OGH states that the Italian judgment must be recognised in Austria under Article 33 Brussels I Regulation. This applies in particular to the force of res judicata of the judgment, which is the most important aspect to be recognised according to Article 33. According to the principle of extension of effect, the objective and subjective limits of res judicata must be determined according to to the law of the State of origin. Consequently, it must be determined according to Italian law which subject-matter was finally adjudicated by the final dismissal of the Italian action. The judgment of the OLG of Linz, which considered that further investigation was required in this regard, cannot be criticised.