Oberster Gerichtshof, Beschluß vom 17/10/2006 4 Ob 174/06a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:RS0121285
Date: 2006-10-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT1017(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a copyright collecting company. It sought from the defendants payment of commissions provided for by Austrian copyright law for putting in circulation blank sound and image storage media. The plaintiff asserted that the defendants cooperated in the distribution of blank cassettes to Austrian buyers. It commenced proceedings before the Austrian commercial Handelsgericht of Vienna (AT). With regards to the third defendant, a company having its seat in Germany, it asserted that the Austrian court had jurisdiction pursuant to Article 5(3) Brussels I Regulation. Furthermore the third defendant had entered an appearance according to Article 24 Brussels I Regulation whereby it challenged the court's jurisdiction in general, however not the international jurisdiction. The appellate court dismissed the proceedings against the third defendant. The plaintiff appealed to the OGH (AT).
The OGH (AT) affirms the judgment by the appellate court and dismisses the appeal. An entry of appearance by the third defendant without challenge of jurisdiction cannot be assumed as the latter clearly challenged the jurisdiction of the court seised. In order to avoid an entry of appearance within the meaning of Article 24 Brussels I Regulation it is not required that a lack of international jurisdiction is expressly pleaded. The forum provided for by Article 5(3) Brussels I Regulation is not applicable to the case. It requires a claim for damages due to a harmful event or an equal event. This is not at hand in the case of a statutory claim for payment of commissions for the putting into circulation of blank sound and image storage media. This activity is allowed, it is merely subject to commissions. Thus, a tort, delict or quasi-delict, or at least an act disapproved by the legal order on which jurisdiction according to Article 5(3) could be based, is missing in this case.