Oberster Gerichtshof, Urteil vom 29/06/2011 8 Ob 56/11k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0080OB00056.11K.0629.000
Date: 2011-06-29
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0629(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant sold shares in an Austrian company to the defendant whose domicile is in Slovenia. The defendant did not pay the purchase price. Thereupon the claimant brought an action for payment before the Landesgericht of Klagenfurt (AT). The action was dismissed at first and second instance on the grounds that the Austrian courts lacked international jurisdiction. The claimant lodged an extraordinary appeal to the OGH (AT) against the judgment of the OLG of Graz (AT).
The OGH dismisses the appeal and upholds the judgments of the prior instances. The forum of Article 5(1) Brussels I Regulation at the contractual place of performance is not established. Article 5(1)(b) does not apply to the sale of shares in a capitalised company. Instead, according to Article 5(1)(a) the place of performance must be determined according to the law applicable to the contractual obligation in dispute, consequently according to Austrian law. Accordingly the place of performance for claims to money payments is at the seat of the debtor, therefore in this case in Slovenia. The jurisdiction of the Austrian courts may also not be established via Article 22(2) Brussels I Regulation. Claims for the transfer of shares in a company or for payment of money owed in connection with such do not fall under this jurisdiction or the jurisdiction of Article 22(3). Contrary to the view of the claimant, a residual jurisdiction of the Austrian courts may not be derived from Recital 12 to the Brussels I Regulation. This is only an expression of a general objective of the Brussels I Regulation. It does not change the fact that the general jurisdiction of Article 2 at the domicile of the defendant may only be deviated from if one of the grounds of special jurisdiction of Articles 5 - 24 is applicable.