Oberster Gerichtshof, Urteil vom 29/06/2004 5 Ob 188/03p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0119313
Date: 2004-06-29
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0629(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff concluded a contract for the delivery of pipe elbows with the first defendant, having its seat in Austria. The latter commissioned the second defendant having its seat in Germany with the production thereof. The first defendant guaranteed a certain quality of the material, which the latter however did not feature. The losses were incurred through the laying of the pipe elbows in the district of the LG of Steyr (AT). The plaintiff brought an action against the defendants before the LG of Linz (AT) seeking a declaration that they were liable for the defective production and delivery of the material. The plaintiff based the jurisdiction with regard to the second defendant on Articles 5(3) and 6(1) Brussels I Regulation. The Court of First Instance dismissed the action against the second defendant for lack of jurisdiction. The appellate court accepted jurisdiction. The second defendant appealed.
The OGH (AT) dismisses the appeal for being unfounded. According to Article 6(1) a party having its seat in a Contracting State, may also be sued before the court of the domicile of another defendant provided that the two actions are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments. The ECJ has held that such a connection does not exist where one of two actions is based on contract and the other on tort (ECJ 27. 10. 1998, C-51/97, Réunion européenne). As the claim against the first defendant is based on contract and the claim against the second defendant is based on tort, there is no close connection. The court finds that the harmful event occurred in the district of the LG of Steyr. Thus, the LG of Linz lacks jurisdiction according to Article 5(3). As the second defendant however failed to challenge the local jurisdiction of the court in its statement of defence, the appeal is unfounded