Oberster Gerichtshof, Urteil vom 11/11/2004 7 Nc 48/04z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0070NC00048.04Z.1111.000
Date: 2004-11-11
Subject matter: Lugano Convention
Origin: Austria

82004AT1111(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, requested reimbursement from a company, with its seat in Switzerland, of capital which the defendant should have invested for profit, after a supposedly safe investment suffered major losses. The investment consultancy agreement was concluded after the referral of the defendant and its Austrian partner. The Plaintiff argued that under Article 14 Lugano Convention, as it was a consumer contract, the Austrian courts were competent. Therefore, the plaintiff requested the determination of a competent court in Austria.
The OGH (AT) finds firstly that, according to Article 13(3) Lugano Convention, it is only a consumer contract if the conclusion of the contract at the consumer's domicile was preceded by a specific invitation addressed to him, or by advertising, and the legal acts of the consumer required for conclusion of the contract were also undertaken in that State. The plaintiff concluded the deal as a private person. Since the conclusion of the deal at the domicile of the consumer was preceded by the intervention of a correspondent, and by the presentation of advertising material, also in that State, it is a consumer case. Accordingly, under Article 14 Lugano Convention, the courts at the domicile of the consumer in Austria are competent.