Oberster Gerichtshof, Urteil vom 20/02/2006 2 Ob 211/04z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:0020OB00211.04Z.0220.000
Date: 2006-02-20
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT0220(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
Based on a contract, the plaintiff bought goods from the defendant, having its seat in Italy, which she resold in Austria. Besides paying the purchase price, she was obliged to perform further obligations, which she performed in Austria, and which partly indicated that a distribution agreement might have been concluded. The prices were agreed to be “ex factory warehouse Verona” (IT). However, after consulting the plaintiff and after her approval, the defendant assigned a carrier. The plaintiff had to account for the costs, since otherwise she would have had to organise the carriage herself. After the termination of the contract, the plaintiff brought a declaratory action before an Austrian court, in order to determine that she had the right to claim compensation.
The OGH (AT) first holds that jurisdiction has to be determined according to Article 5(1)(b) of the Brussels I Regulation. Since according to that rule, all claims arising out of a sales contract or a service contract can be brought at the place of performance of the obligation which forms the basis of the claim, such a determination depends on which element – sales contract or service contract – prevails in an overall analysis. In this case, according to the court, the elements of a sales contract prevail. However, this does not lead to an Austrian place of delivery within the meaning of Article 5(1)(b), first alternative, of the Brussels I Regulation. The place of delivery must be determined according to de facto criteria. Even though the transmission of the goods was organised by the defendant, the carrier was assigned not only at the plaintiff’s expense, but also with her approval. Therefore, it could be deduced that the defendant acted on behalf of the plaintiff when shipping the goods and it could be held that the carriage already fell within the plaintiff’s sphere of responsibility. Thus, Verona is the place of delivery (performance) according to Article 5(1)(b).