Oberlandesgericht Wien, Beschluss vom 01/06/2004 3 R 68/04y P. / R.
Decision by national courts in the field of European Union law — ECLI:AT:OLG0009:2004:RW0000635
Date: 2004-06-01
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0601(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria ordered from the defendant, having its seat in Germany, some appliances, which were supposed to be delivered to and installed in Austria. Due to malfunctions,
the plaintiff commenced proceedings before an Austrian court seeking reimbursement of the down payment as well as of the unsatisfied expenditures, asserting that the court had jurisdiction according to a jurisdiction agreement as well as due to the place of performance. The plaintiff's order contained a note in small print at the lower end stating "Place of performance and jurisdiction are established in Wiener Neustadt". The defendant alleged that the case had already been brought before a German court.
The OLG of Vienna (AT) firstly holds that a jurisdiction agreement within the meaning of Article 17(1) Brussels Convention was not concluded as reference to it was hidden in a footer in small print beneath the text of the contract. The same applies to the agreement concerning the place of performance, which does not require any special form, since the defendant did not have to expect such a clause in a footer. Thus, the place of performance according to Article 5(1) Brussels Convention shall be determined according to the law applicable to the underlying contract. Where, as in this case, uniform substantive law applies, i.e.the CISG, the place of performance shall be determined according to the latter. As the German court already accepted jurisdiction by way of an uncontested order, the Austrian courts lack jurisdiction according to Article 21(2) Brussels Convention.