Conduct having taken place in or outside Austria If with regard to disputes concerning acts of unfair competition an action is brought against persons whose enterprise is located in Austria, or who are sued with regard to their activity in Austria, the court shall have exclusive jurisdiction in whose district the enterprise is located. If the enterprise has several branches, the complaint may be filed either at the court where the headquarters are located or at the branch to which the wrongful conduct pertains (Section 83 c (1) Code on Jurisdiction).
Section 48 (2) of the Private International Law Act 1976 IPRG states that claims for damages or any other claims based on unfair competition are to be judged according to the (substantial) law of the country whose market is affected by the competition. Thus the courts will apply foreign law in these cases if the market affected by the competition is located outside Austria.
If the claim is to be judged according to foreign law then the legal provisions on which the claims is based must be established by the Court whereby it can ask the parties to contribute (SZ 61/39 = ÖBA 1988, 609 = RdW 1988,320; Duchek-Schwind, Internationales Privatrecht 17; diff: OGH 12.9.72, SZ 45/94)
Conduct deemed to have taken place in Austria
With respect to printed publications sent from abroad, the infringement is deemed to be committed at any place where the objects have been received, handed over or distributed (Section 83 c (1) Code on Jurisdiction).
This provision is applied rather restrictively. A decision concerning an anti-competitive layout and outer design of a book found it decisive for the anti-competitive act to be deemed of having taken place in Austria that the printed publication had been marketed (distributed) in Austria intentionally and not only in a coincidental manner (Supreme Court 29/10/1986, ÖBl 1986, 97). The infringement of a trademark through goods having been sent from abroad is deemed to be committed where the goods are offered for sale (Supreme Court 16/6/1987 ÖBl. 1988, 106 = SZ 60/106 (Herzig, RdW 1988, 415; Prunbauer RdW 1988, 285).
e) How are your court’s prohibitory injunctions or prohibitory judgements/restraint orders (i.e. judgements stating the duty to refrain from doing something, e.g. an act of unfair competition) enforced? Can they be enforced in your country, even though the conduct that is subject to the prohibitory order is taking place in a foreign state?
The final, definite court decisions may be legally enforced according to the provisions of the Austrian Act on Enforcement (Exekutionsordnung - EO). If despite the final judgement, the defendant continues the infringement, the plaintiff may institute the enforcement procedure against the defendant. The means of enforcing verdicts providing for an injunction in competition law cases are fines and/or imprisonment. If the defendant violates the injunction contained in the verdict, the plaintiff may file an application requesting a fine to be imposed on the defendant. If the defendant continues the infringement, the plaintiff may apply for another fine or for the defendant’s imprisonment of up to one year. The maximum fine amounts to ATS 80,000 for each violation. In addition, the plaintiff may apply for a security to be deposited by the defendant for damages caused by possible future violations (section 355 Act on Enforcement).
The application for enforcement must be filed with the competent enforcement court (special court responsible for the enforcement of judgements), usually the district court of the defendant’s general venue. Once the enforcement has been granted, it will be executed by the enforcement court.
The enforcement of verdicts is usually limited to the state where the decision has been made. The enforcement of verdicts in other states is only possible on account of special conventions.
The 1968 Brussels Convention on jurisdiction and enforcement of judgements in civil and commercial matters (Brussels Convention) that will be replacing the Lugano Convention on jurisdiction and enforcement of judgements in civil and commercial matters (concluded in Lugano 16.9.1988 (OJ. L 319/88, 9), in force in Austria since 1.9.1996, BGBl. 1996/448) has entered into force on 1 December 1998. Due to its almost identical content it does not materially change the legal situation on jurisdiction and enforcement of judgements but adds the competence of the European Court of Justice to interpret its provisions (Klauser EuGVÜ und EVÜ in Kraft getreten, ecolex 1998, 903).
Further to the signatories of the Lugano Convention there are bilateral conventions with Turkey (BGBl. 1992/571), Israel (BGBl. 1968/349), and Tunesia (BGBl. 1980/305) which provide also for the enforcement of verdicts.
Czernich has shown that 46 of the 51 States of the USA (including the District of Columbia) recognise and enforce Austrian verdicts (Czernich, Die Vollstreckung österreichischer Leistungsurteile in den Vereinigten Staaten von Amerika, WBl. 1995, 10, 15).
Under certain circumstances Sections 79 ff Act on Enforcement foresees the enforcement of verdicts in Austria according to the domestic rules of another State even without the existence of a convention. § 79 EO requires however not only reciprocity but also a constitutive government declaration concerning the existence of reciprocity (Czernich op.cit. 16).
Is a choice of forum between competitors possible in unfair competition matters?
No for the reasons set out above under III. 1.h). See however Article 17 Brussels Convention (in force since 1/12/98) that appears to allow a choice of forum in competition matters.
Dr. Marie Helen Pichler LL.M. E-Mail: opf.vienna@aon.at
Ortner Pöch Foramitti RAe OEG Tel. *43 1 535 37 21,
A-1010 Wien, Strauchgasse 1-3 Fax * 43 1 533 1555
Marie Helen Pichler
Ortner Pöch Foramitti Rechtsanwälte OEG
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