Oberster Gerichtshof, Beschluss vom 16/12/2010 17 Ob 13/10a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0170OB00013.10A.1216.000
Date: 2010-12-16
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT1216(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff and the Italian defendant are both manufacturers of snow chains. The plaintiff sought a preliminary order from an Austrian court to prevent the defendant from spreading allegations of patent infringement in Japanese business circles. The court of first instance granted the requested provisional measure. The appellate court revoked the provisional measure due to lack of international jurisdiction. The plaintiff lodged an appeal to the OGH.
The OGH holds that the appeal is unfounded. It holds that jurisdiction over the provisional measure cannot be established pursuant to Article 31 of the Brussels I Regulation on the basis of jurisdiction as to the substance since the Austrian courts do not have international jurisdiction according to Article 5(3). The allegations made in Japan can only damage the reputation of the plaintiff in Japan. Mere secondary injuries occur in Austria, which do not suffice for Article 5(3). Direct jurisdiction over proceedings for protective relief under national law is likewise not established, since a “real connecting link” is missing. It is true that under Austrian law the mere pendency of proceedings as to the substance establishes jurisdiction over proceedings for protective relief. However, according to the jurisprudence of the ECJ, it must further be examined whether there is a “real connecting link”
between the subject-matter of the measure sought and the territorial jurisdiction of the Member State of the court before which this measure is sought. In the view of the OGH, this is only the case regarding actions seeking orders of omission if either the defendant is domiciled in Austria, or if however the act whose omission is sought is located domestically or if it could lead to an impairment of a legal interest domestically – in this case, damage to reputation in Austria. Mere pendency of proceedings as to the substance does not, however, suffice.