Oberster Gerichtshof, Beschluß vom 13/10/1999 9 ObA 230/99k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:009OBA00230.99K.1013.000
Date: 1999-10-13
Subject matter: Lugano Convention
Origin: Austria

81999AT1013(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is domiciled in Austria. The defendant has its seat in Switzerland. The plaintiff was employed by the defendant as the person responsible for sales in Austria. He sought certain payments from the defendant and commenced proceedings before the Austrian court at his domicile against the latter. The OLG of Graz (AT), in its function as appellate labour and social court, held that the Austrian courts had international jurisdiction. The defendant appealed to the OGH (AT).
The OGH (AT) affirms the judgment by the OLG of Graz (AT). The Lugano Convention is applicable to the case. The concept of contract of employment within the Lugano Convention has to be interpreted in an autonomous way. Article 6 of the 1980 Rome Convention is one of the guiding principles for the qualification of an agreement as contract of employment. According to the ECJ's jurisprudence, one of the substantial elements of an employment contract is the fact that a person performs services for another person according to instructions for a certain time and therefore obtains payment. Furthermore, it is typical for an employment relationship that the employee is permanently integrated in the employer's business. However an economic dependence of the employee is not an element required for an employment contract. The OGH states that a comprehensive evaluation of the plaintiff's position leads to the assumption that the latter was permanently integrated in the defendant's business. Thus an employment relationship was on hand. The jurisdiction clause contained in the agreement between the parties, which was entered into before the dispute arose, is thus invalid according to Article 17(5) Lugano Convention. Consequently, according to Article 5(1) Lugano Convention, the plaintiff could seise the Austrian courts at the place where he habitually performed his work.