Oberster Gerichtshof, Urteil vom 16/05/2001 6 Ob 27/01s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0115418
Date: 2001-05-16
Subject matter: Lugano Convention
Origin: Austria

82001AT0516(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, owner of a travel agency in Germany, reserved on a regularly basis for several years, an accomodation as well as incidental services (half board, ski passes) as holidays “all inclusive” at the plaintiff’s, a hotel keeper in Austria. The plaintiff requires now before an Austrian court payment of the cancellation fees concerning bookings cancelled at short notice. The court of first instance declared itself competent pursuant to Article 5(1) Brussels Convention, since after the use payment must be effected by the guest at the place of accommodation. However the court of appeal dismissed this opinion.
The OGH (AT) considers on the first hand that according to Article 4(2) Rome Convention one shall for the determination of the place of performance pursuant to Article 5(1) apply the law in force at the seat of the hotel keeper since the latter provides the characteristic service. In the case of secondary contractual obligations, as here compensation, it depends on the place of performance of the main obligation infringed. In this case, it concerns the payment of the price of the package of services by the travel agency, so that it shall be determined where these shall be provided. One cannot focus on the nature and the aim of this obligation, which are taken into consideration by the applicable Austrian substantive law because contrary to the guest as individual, a travel agency does not normally pay the services provided for its customers by personally handing over the money, all the more that it is not present at the place of accommodation. Thus nothing favours a performance at the place of the hotel keeper. One rather focuses on the legal rule favouring the seat of the debtor (according to Para. 905(1) ABGB), hence the office of the travel agency as place of performance.