Handelsgericht, Urteil vom 04/03/1997 1 R 40/97x
Decision by national courts in the field of European Union law — ECLI:AT:LG00007:1997:RWH0000005
Date: 1997-03-04
Subject matter: Lugano Convention
Origin: Austria

81997AT0304(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria requests from the defendant, having its seat in the Netherlands, the payment of an amount of money before an Austrian court. Regarding jurisdiction, she invokes the jurisdiction of the court of the place of billing. The court of first instance considers itself incompetent since the Lugano Convention does not provide for the jurisdiction of the court of the place of billing.
The commercial court of the Landesgericht of Vienna (AT) finds that the plaintiff did not sufficiently establish the facts to justify the jurisdiction at the place of performance, in the sense of Article 5(1) Lugano Convention, by invoking the jurisdiction of the court at the place of billing. Certainly, this special rule of jurisdiction is determined by the substantive place of performance, which is to be determined in accordance with the conflict of laws rules of the court seised. However, the application of the CISG is not compulsory and besides, the establishment of the vendor, in this case the plaintiff, is to be taken into account only secondarily as place of payment. Anyhow, the plaintiff did not bring any arguments to this end in the legal action.