Source: EURLEX
Language: en
Format: md

[JURE summary](#SM)

## JURE summary

As a former employer, a credit institution established in Austria (the "plaintiff") holds accountable two employees domiciled in Germany (the "first defendant" and the "second defendant" or together the "defendants") because of a violation of their fiduciary duty. The defendants have obtained the plaintiff's customers’ data and have tried to solicit these customers in their own favour and in favour of a third defendant (the "third defendant").

The three defendants pleaded international incompetence of the Court of First Instance.

The Court of First Instance pronounced its international incompetence and rejected all complaints.

The Court of Appeal (Oberlandesgericht Innsbruck) confirmed the defendants’ rejections, but did not confirm the third defendant’s plea of the international incompetence. As the dispute’s value exceeds EUR 30,000, the ordinary appeal on points of law is not admissible.

The Oberster Gerichthof (the "OGH") structured its decision in two parts.

First, it expresses its opinion on the plaintiff's extraordinary appeal on points of law. The plaintiff’s claims are contained in the Articles 18 et seq. of the Brussels I Regulation (¹), which determine the jurisdiction over claims arising from an individual contract of employment (not only an existing one, but also a contract of employment that is no longer in existence or dissolved).

In accordance with Article 20 of the Brussels I Regulation, the employer may only bring the action before the court in whose territory the employee is domiciled. In the case of the first and second defendant, this is Germany.

Therefore, the Court of Appeal has assumed correctly the applicability of Articles 18 et seq. of the Brussels I Regulation and thus the international incompetence of the Court of First Instance.

On the third defendant’s extraordinary appeal on points of law, the OGH leads the following. In this case Article 5(3) Brussels I Regulation is to be applied (tort claims). The Court of Justice of the European Union (the "CJEU") defines claims in tort lawsuits as claims where any defendants’ liability is asserted and where Article 5(1) Brussels I Regulation does not apply.

This includes claims for unfair competition and the violation of intellectual property rights in particular. In such cases, the local court at the place where the damaging event occurred has jurisdiction. According to the CJEU’s case-law, this means both the place where harm occurred and the place where harm arose. In the present case, the plaintiff argues that the third defendant’s unfair action restricted their earning potential in Austria.

The plaintiff holds the third defendant accountable for the third defendant’s own unlawful conduct and is not held accountable merely as the other two defendants’ helper. The Court of Appeal has confirmed the jurisdiction over the claims against the third defendant.

The OGH rejected the plaintiff’s and third defendant’s extraordinary appeal on points of law.

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(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, valid until 09.01.2015.](http://data.europa.eu/eli/reg/2001/44/oj)

(²) RIS Justiz RS0115357.

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