Wrong Interpretation of Community Law by the Austrian Supreme Court: Claimant not liable for damages

The Austrian Supreme Court clarified recently that the claimant is not liable for damages in case that a previously granted interim injunction appears to be unjustified in view of a later decision by the ECJ.

In the present case, the defendant was distributor who transported printers, cartridges, etc., bought in South East Asia and North America, to a custom warehouse in Austria. These products were not intended for sale within the EEA and in fact were sold outside the EEA by the distributor. Trade mark proprietor Canon considered this being an "importation to Austria" within the meaning of Art. 5 (3) of the Trade Mark Directive.

The Austrian courts up to the Austrian Supreme Court granted an interim injunction according to which the distributor had to cease and desist from importing the allegedly trade mark infringing goods to the custom warehouse in Austria. Although the defendant prompted the Austrian courts to ask the ECJ for a preliminary ruling on the interpretation of the controversial provision of Community Law, even the Austrian Supreme Court - despite its obligation to do so - refrained from filing a reference to the ECJ.

In view of the interpretation of Community Law by the ECJ in case C-405/03, it seems clear that the interim injunction was not justified. Accordingly, the defendant sued for damages due to the unjustified interim injunction. However, the Austrian Supreme Court found that there was neither a legally binding decision, judging that the interim injunction was unjustified from the outside, nor that the interim injunction was else wise unjustified. Thus, in the Supreme Court's opinion granting an - in view of an ECJ decision - allegedly unjustified interim injunction does not fall under one of the two options causing liability for the claimant. Accordingly, the defendant against whom an interim injunction was (allegedly) unjustifiedly granted in view of a later ECJ decision may not claim damages from the claimant.

However, in this decision it was neither claimed nor clarified whether the Republic of Austria might be liable for damages as the Austrian Supreme Court contravened Art. 234 para 3 EC Treaty, according to which Supreme Courts shall bring questions of Community Law before the Court of Justice. This might be an option for getting damages in case the Supreme Court fails to ask the ECJ for a preliminary ruling.

Dr. Rainer Beetz, LL.M.