Oberster Gerichtshof, Urteil vom 18/04/2001 7 Ob 76/01d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0114943
Date: 2001-04-18
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT0418(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff seated in Austria concluded a general agreement with the defendant, a German company, concerning the refinement of a semi-finished product to be delivered to this end to the plaintiff by the defendant. The plaintiff could then exclusively sell it as finished product, inter alia, in Austria. As the defendant did not comply with the delivery obligation for the semi-finished product, the plaintiff requested the rendering of accounts concerning the refinement conducted elsewhere as well as payment of damages. Since the refinement should have been conducted in Austria, the plaintiff claims that the court of the place of performance is also situated there according to Article 5(1) Brussels Convention. The court of first instance (AT) however founded the claim on the obligation for damages as a debt to be fulfilled at the seat of the German debtor and did not consider itself competent. However the court of appeal considered the general agreement as basis and affirmed its jurisdiction.
The OGH (AT) finds that the plaintiff does not found its claim on a concrete delivery contract, but exclusively on the infringement of a delivery obligation resulting from the general agreement. The latter is governed by the law at the seat of the supplier of the characteristic obligation, which is constituted by the refinement as work performance. According to the relevant Austrian law, the “agreement” of the parties as well as the “nature and scope of the business” are decisive to the place of performance; the two criteria refer both to the seat of the plaintiff, since the latter conducted the refinement at its seat. Thus the Austrian court is competent.