Oberster Gerichtshof; 2018-05-24; 6 Ob 60/18v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0060OB00060.18V.0524.000
Date: 2018-05-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT0524(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns a dispute brought before the Austrian Bezirkgericht Fünfhaus (hereinafter ‘the Court of First Instance’) against the defendant D.G. from France (hereinafter ’the defendant’) by the plaintiff V.H. (hereinafter ‘the plaintiff’) seeking a declaration of intent (the amount in dispute being 76.000 EUR).
The plaintiff sought to obtain the defendant´s consent to the transfer of shares in real-estate property located in Austria to its sole ownership based on a civil law agreement, which was allegedly concluded between the plaintiff and the defendant and by which the defendant obliged itself to the transfer of shares in real-estate property against the payment of EUR 105.000. The plaintiff made the agreed payment, however, the defendant failed to fulfil its obligation.
Before the Court of First Instance the defendant was initially represented by a representative in absentia, who did not raise any objections against the jurisdiction of the Austrian courts. Later, however, the defendant raised an objection of international jurisdiction, as he was still entitled to do so (see the case-law of the Court of Justice of the European Union, Case C-112/13 (1)). The Court of First Instance declared that it lacked jurisdiction to hear the plaintiff´s claim.
The Court of Appeal confirmed the first instance decision, nevertheless, it admitted the appeal on a point of law. Both lower courts referred back to the explanation of the application of Article 7(1) of the Brussels I Regulation (recast) (2) in a decision of the Oberster Gerichtshof (8 Ob 114/15w) (4), according to which ‘a person domiciled in a Member State may be sued in another Member State, in matters relating to a contract, in the courts for the place of performance of the obligation in question’, or of Article 5(1) of the Brussels I Regulation (3). According to this decision, the relevant articles cover only contracts creating a legal obligation but not dispositive contracts; and thus, the relevant articles do not relate to contracts under which the rights are modified, burdened, annulled or transferred, as in the present case, which, in the opinion of the Court of Appeal, concerns rather the consent to the entry of the ownership title required by the land register law. According to § 32 GBG (5), the consent is not part of the act of obligation (‘Verpflichtungsgeschäft’), but belongs to the dispositive act (‘Verfügungsgeschäft’).
The plaintiff lodged an appeal on a point of law against the decision of the Court of Appeal before the Oberster Gerichtshof (hereinafter ‘the Supreme Court’). The Supreme Court based its decision on the judgement of the CJEU in Case C-417/15 (6). The plaintiff asserts rights resulting from the act of obligation (contract), i.e. transfer of ownership, and therefore, it is possible to establish the jurisdiction of the Austrian courts under Article 7(1) of the Brussels I Regulation (recast). Moreover, the transfer of ownership of the property located in Austria, the physical transfer as well as the entry in the land register with the obligatory declaration of conveyance must take place in Austria, so that the focus of performance acts take place in Austria.
As a result, the Supreme Court upheld the appeal on point of law and altered the lower courts´ decisions, taking the view that the plea of lack of international jurisdiction shall be rejected and the international jurisdiction of the Austrian courts established.
(1) Judgment of the Court of Justice of 11 September 2014, A v B and Others, C‑112/13, ECLI:EU:C:2014:2195.
(2) 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.
(3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(4) ECLI:AT:OGH0002:2015:0080OB00114.15W.1125.000.
(5) Allgemeines Grundbuchsgesetz 1955 (General Land Registry Act 1955).
(6) Judgment of the Court of Justice of 16 November 2016, Wolfgang Schmidt v Christiane Schmidt, C-417/15, ECLI:EU:C:2016:881.