OGH; 2023-06-22; 10 Ob 56/22s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2023:0100OB00056.22S.0622.000
Date: 2023-06-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82023AT0622(51)_ENG_SUMJURE
JURE summary
JURE summary
A debt collection agency domiciled in Switzerland (hereinafter ‘the plaintiff’) filed an action against a provider of online games domiciled in Malta (hereinafter ‘the defendant’) demanding the payment of EUR 7 941 which a person domiciled in Austria lost on the gaming platform of the defendant and assigned to the plaintiff.
The plaintiff based its claim on the argumentation that the defendant did not have a licence under Austrian laws. The gambling agreements concluded by the Austrian gambler were null and void and he was therefore entitled to receive compensation. The defendant contested the international jurisdiction.
The Bezirksgericht Judenburg (hereinafter ‘the Court of First Instance’) dismissed the action, stating that the plaintiff was a joint-stock company domiciled in Switzerland and could not, therefore, rely on the jurisdiction over consumer contracts under Article 17 of the Brussels I Regulation (recast) (1). Contrary to the opinion of the plaintiff, the plaintiff, as a legal successor of the Austrian gambler, could not invoke the jurisdiction according to the place of performance (2) or for matters relating to tort, delict or quasi-delict (3).
The Landesgericht Leoben (hereinafter ‘the Court of Appeal’) did not uphold the appeal of the plaintiff, stating that the plaintiff was not a consumer and was bound by the agreed jurisdiction between the gambler and the defendant even though such agreement was ineffective due to the consumer status of the gambler. Therefore, the courts holding the sole jurisdiction were the courts of Malta.
The revision filed by the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found amissible and partially justified.
The defendant was right to argue that the plaintiff could not rely on the jurisdiction according to the place of performance. The gambler and the defendant made an agreement for the provision of services under Article 7(1)(b) of the Brussels I Regulation (recast). The contractual performance, which is the decisive aspect to determine the place of performance, was the obligation of the defendant to offer the games on its websites. The place of performance was therefore Malta.
Jurisdiction for matters relating to tort, delict or quasi-delict under 7(1) of the Brussels I Regulation (recast), however, existed. Besides the detriment to the property of the gambler at this place of residence, another aspect of illegal conduct must have been present at such a place. In this dispute, it was the defendant’s breach of Austrian gaming laws and the provision of services without the necessary licence.
To that extent as the plaintiff was invoking the jurisdiction for matters relating to tort, delict or quasi-delict, the Supreme Court annulled the decisions of the Court of First Instance and the Court of Appeal and instructed the Court of First Instance to initiate proceedings while ignoring the cause of its original dismissal of the action.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Article 7(1) of the Brussels I Regulation (recast).
(3) Article 7(2) of the Brussels I Regulation (recast).