Referring court and Member State
Austria, Third Instance, Oberster Gerichtshof
Summary
The request was made in a European order for payment procedure initiated by Goldbet Sportwetten GmbH (“Goldbet”), a company established in Austria, against Mr Sperindeo, residing in Italy. Goldbet had applied for a European order for payment before the Bezirksgericht für Handelssachen Wien. Mr. Sperindeo lodged a statement of opposition to the order. The case was referred to the Landesgericht Innsbruck by the Bezirksgericht für Handelssachen Wien, taking the view that this court is the competent court for the ordinary civil procedure within the meaning of Article 17(1) of Regulation No 1896/2006. Before the Landesgericht Innsbruck, Mr Sperindeo pleaded for the first time a lack of jurisdiction of the Austrian courts. Goldbet contended that the Landesgericht Innsbruck had jurisdiction as the court for the place of performance of the obligation to pay a sum for money, in accordance with Article 5(1)(a) of Regulation No 44/2001; in any event, according to Goldbet, the Landesgericht Innsbruck had jurisdiction under Article 24 of Regulation No 44/2001, since Mr Sperindeo, having failed to plead lack of jurisdiction when he lodged a statement of opposition to the European order for payment in question, had entered an appearance within the meaning of that article. By order, the Landesgericht Innsbruck declined jurisdiction and dismissed the action brought before it. Goldbet appealed to the Oberlandesgericht Innsbruck. The Oberlandesgericht Innsbruck dismissed the appeal. Goldbet brought an appeal on a point of law against the decision of the Oberlandesgericht Innsbruck before the Oberster Gerichtshof Austria (the referring court). The Oberster Gerichtshof Austria decided to stay the proceedings and to refer questions to the Court. The court, agreeing with AG Bot, decides that article 6 of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, read in conjunction with Article 17 thereof, must be interpreted as meaning that a statement of opposition to a European order for payment that does not contain any challenge to the jurisdiction of the court of the Member State of origin cannot be regarded as constituting the entering of an appearance within the meaning of Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the fact that the defendant has, in the statement of opposition lodged, put forward arguments relating to the substance of the case is irrelevant in that regard.