OGH: Jurisdiction after Executory Title Violations

Mar 17, 2023 Benn-Ibler Rechtsanwälte

If an action violating an executory title has materialised throughout Austria, pursuant to Section 355 of the Austrian Enforcement Regulation (Exekutionsordnung, hereinafter EO) the debtor has the choice of which district court to claim as competent. An appeal to the Austrian Supreme Court (Oberster Gerichthof, hereinafter OGH) will no longer be necessary following an overall reform of the Austrian execution laws (hereinafter GREx).

The two parties to the proceedings at hand were both residents of Serbia. Following previous proceedings, an interim injunction was issued requiring the defendant to cease and desist from broadcasting episodes of specific TV series in Austria or making them available on the Internet without the defendant's consent. Since the defendant was broadcasting the aforementioned TV show via live streams on a streaming platform, the complainant applied for an injunction pursuant to Section 355 EO.

The court of first instance did not consider itself to have jurisdiction. The appellate court, on the other hand, ruled that the court of first instance did indeed have jurisdiction, as the case involved the option of venue choice pursuant to Section 5c (3) EO. The Supreme Court held as follows:

Before GREx, enforcement under Section 355 EO was based on the place of residence of the obligor pursuant to Section 18(4) EO. However, in the absence of a residence in Austria, an ex officio application pursuant to Section 28 of the Austrian Court Jurisdiction Act (Jurisdiktionsnorm, JN) to the OGH was provided for. After GREx came into force, the provision on local jurisdiction for cease and desist orders was reworded in Section 5c EO. According to this provision, jurisdiction is based on the general place of residence of the obligor. However, an application for an injunction pursuant to Section 355 EO may also be filed with the court in whose district an act in violation of the executory order is committed or its consequences materialise, thus rendering application for jurisdiction unnecessary. In cases where more than one location is involved where the executory order is violated, several courts of jurisdiction can have jurisdiction. For example, in the case of internet crimes this can be the entire Austrian territory, therefore the executing party is free to choose the executory court in Austria.

OGH 3 Ob 207/22w (15.12.2022)