Referring court and Member State
Austria, Third Instance, Oberster Gerichtshof
Summary
The case on the interpretation of Art 24 of Brussels I arose in Austrian proceedings between A, and, B and others, concerning an action for damages brought against A by B and others claiming that A had abducted their husbands or fathers in Kazakhstan. The first instance court’s attempts at service had failed since A was no longer domiciled at the addresses in Austria indicated for service. The court appointed a representative in absentia under Austrian law. This court-appointed representative submitted a defence contending that the action should be dismissed on substance, without contesting the court’s jurisdiction. Later, a firm of lawyers instructed by A challenged jurisdiction, without identifying A’s domicile, on the ground that the defence of the representative, who had had no contact with A and no knowledge of the relevant circumstances, could not form the basis of jurisdiction, and A had left Austria permanently before the action. The court decided that it lacked jurisdiction after finding that A was domiciled in Malta and that lodging the defence by the representative did not amount to entering an appearance under Art 24. The appellate court rejected the preliminary objection alleging lack of international jurisdiction. It observed that, under Article 26, the national courts were not obliged to examine their international jurisdiction unless the defendant failed to enter an appearance. At revision before the referring court, A alleged an infringement of his rights of defence as guaranteed by Art 6 of the ECHR, and of Art 47 of the Charter of Fundamental Rights of the EU. The referring court referred some questions to the CJEU and, on Brussels I, it asked whether the appearance entered by the court-appointed representative amounts to an appearance being entered by the absent defendant, establishing the international jurisdiction of that court, under Art 24. The CJEU noted that the Austrian courts had no jurisdiction to hear the case under Brussels I unless A had entered an appearance before the court seised under Art 24. It also observed that a court-appointed representative under Austrian law has a wide power of representation including the power to enter an appearance for the absent defendant. The CJEU agreed with the AG that the tacit prorogation of jurisdiction under Art 24 is based on a deliberate choice made by the parties regarding jurisdiction, which presupposes that the defendant was aware of the proceedings brought against him. It continued that an absent defendant upon whom the document instituting proceedings has not been served and who is unaware of the proceedings against him may not be regarded as having tacitly accepted the jurisdiction of the court seised. It added that, in those circumstances, the absent defendant cannot provide the representative with all the necessary information and also the representative appearance may not be regarded as tacit acceptance, by the defendant, of the court’s jurisdiction. The CJEU found that a contrary interpretation would not be consistent with the objectives of Brussels I that the jurisdiction rules should be highly predictable (Recital 11). Citing C 327/10 and C 292/10, it added that its interpretation is also supported by the applicant’s right to an effective remedy as guaranteed by Art 47 of the Charter, which must be implemented in conjunction with respect for the defendant’s rights of defence under Brussels I. The CJEU rightly distinguished two situations by stating that: the procedural steps taken by the court-appointed representative under Austrian law have the effect under Austrian law that A must be regarded as having entered an appearance before the court seised, but such steps by the representative without the defendant’s approval cannot be regarded as amounting to an appearance being entered by that defendant under Art 24 of Brussels I as this would not strike a fair balance between the right to an effective remedy and the rights of the defence.