Oberster Gerichtshof; 2018-04-25; 2 Ob 28/18h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0020OB00028.18H.0425.000
Date: 2018-04-25
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82018AT0425(51)_ENG_SUMJURE
JURE summary
JURE summary
A limited liability company domiciled in Austria (hereinafter ‘the plaintiff’) sought liability of the defendants domiciled in Great Britain and Switzerland (hereinafter ‘the defendants’). The bondholders who assigned their claims to the plaintiff suffered damage as a result of the defendants deliberately causing the bankruptcy of the lender. The bankruptcy proceedings are still pending.
The jurisdiction of the Austrian courts was based on Article 5(3) of the Brussels I Regulation (1).
The defendants raised the plea of geographical and substantive lack of jurisdiction of the court.
The Handelsgericht Wien (hereinafter ‘the Court of First Instance’) dealt only with the question of jurisdiction. With regard to the first defendant, with the exception of one of the assigned claims, where it rejected the claim, the court ruled that it had jurisdiction. With regard to the second defendant, it dismissed the action entirely on the grounds of lack of material jurisdiction. In this case, the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters Vienna) is competent. In essence, the Court of First Instance also favoured the international jurisdiction of the Austrian Courts for the claims against the second defendant.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) amended the decision of the Court of First Instance on appeal by the defendant to dismiss the action in its entirety for international lack of jurisdiction. The Court of Appeal held that although the damage affects the property of the injured parties, this does not mean that the location of the property (usually the residence of the injured parties) must also be regarded as the place where the harmful event occurred within the meaning of Article 5(3) of the Brussels I Regulation.
The Oberste Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) rejected the plaintiff's appeal.
The plaintiff lodged an appeal under paragraph 528(1) of the ZPO (2), which presupposes the existence of a substantial point of law. The appeal of the plaintiff is limited to the literal interpretation of decisions on the place of success in the case of claims for damages for cartel damages. However, the plaintiff did not deal at all with the argument of the Court of Appeal that it only asserted claims of indirectly injured parties, and that the first loss had occurred in another Member State.
The Court of Justice of the European Union has repeatedly ruled that the place where the harmful event occurred, according to Article 5(3) of the Brussels I Regulation (or Article 7(2) of the Brussels I Regulation (recast) (3)) does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Member State (4).
The Supreme Court similarly ruled on the localization of the place where the harmful event occurred in prospectus liability cases (5), and where third-party damage was not considered.
The Supreme Court dismissed the plaintiff's appeal on a lack of significant legal issues.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zivilprozessordnung (Code of Civil Procedure).
(3) 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.
(4) Judgment of the Court of  Justice of 19 September 1995, Antonio Marinari v Lloyds Bank plc and Zubaidi Trading Company, C-364/93, ECLI:EU:C:1995:289, paragraph 21.
(5) Judgment of the Court of Justice of 10 June 2004, Rudolf Kronhofer v Marianne Maier and Others, C-168/02, ECLI:EU:C:2004:364, paragraph 16.