Oberster Gerichtshof; 2014-02-26; Dr. B. H., H. H.; S., GmbH; 7 Ob 225/13h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0070OB00225.13H.0226.000
Date: 2014-02-26
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT0226(51)_ENG_SUMJURE
JURE summary
JURE summary
Two Austrian natural persons (the “plaintiffs“) sued a German limited (the “defendant“) for warranty and damages. The plaintiff claimed, the defendant had acted as an agent of a Florida, USA based shipping company in Germany. Also, the defendant had targeted their business activities to Austria as well and as a result of this, the plaintiffs had purchased a Mediterranean cruise during 3 weeks in September 2009 from the defendant.To the jurisdiction of the Court of First Instance, the plaintiffs rely on Article 15(1) of Council Regulation (EC) No 44/2001 of 22. December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation"), version valid until 09.01.2015.The defendant raised the defence of lack of international competence. At the time of conclusion of the contract, she had not actively advertised in Austria.The Court of First Instance (district court “Bezirksgericht Deutschlandsberg”) dismissed the action due to lack of international competence. The Court of First Instance suggested in the explanatory statement, that, within the meaning of the case-law of the Court of Justice of the European Union (the “ECJ”), it is to assume that the defendant’s business activities did not cover Austria during the relevant time of the conclusion of the contract.The appeals court (regional court “Landesgericht für Zivilrechtssachen Graz”) confirmed the decision of the Court of First Instance. Mere supply by a foreign company, once sending catalogues to the plaintiffs, pointing out special offers for guests from German-speaking countries, advertising IBAN and BIC code did not mean yet that the defendant’s business activities had been targeted to Austria. One could not deduce a causal connection of the aforementioned that would result in the conclusion of the contract.Austria’s supreme court of justice “Oberster Gerichtshof” (the “Supreme Court”) has considered that the defendant’s appeal is admissible and entitled. Rightly and indisputably, the package travel contract is subject to Brussels I Regulation of jurisdiction over consumer contracts according to Article 15(3).It is disputable whether the activity of the German-based defendant’s business activities was targeted Austria at the time of the conclusion of the contract in 2009.The Supreme Court considers several ECJ rulings in which the term “targeted activity” is explained.ECJ Decision C-585/08:Targeted activity is only by a trader who carries out their business activities in the consumer’s Member State of residence or aligns these business activities in some way to that Member State. The trader has expressed a will to establish business relationship with the consumer. Mere accessibility of the website alone is not enough for that. It is necessary to look for clues that were present before the possible conclusion of the contract and that indicate the trader wanted to do business with consumers who are resident in another Member State. These clues are e. g. the international character of the business activities, use of other languages, other currency, phone numbers with international prefix, the website in several languages, et cetera. It is always necessary to consider these clues in respect of the specific case.ECJ Decision C-585/08:Consumer contracts that are not concluded at a distance are subject to Article 15(1)(c) of the Brussels I Regulation. For the application of this provision, commercial or professional activity is crucial and must be focused on the consumer’s State of residence. Initiation of remote contact, purchase of an item or a service at a distance and in particular conclusion of a consumer contract at a distance are signs that the contract follows up such activity.The Supreme Court suggests in the explanatory memorandum of the present case that already in 2009, the customers in Austria have booked trips not only through travel agencies, but also directly with the defendant. At least 10 % of bookings were made directly. Hence obviously, the defendant directed its activity to Austria.More signs for the activities’ orientation in Austria are: a slogan “Guests from German-speaking countries” from the brochure refers hints at the international character of the defendant’s activities, the terms and conditions contain provisions for “Nationals of a Member State of the EU”, IBAN and BIC code are used for the processing of payments from foreign clients.It is clear from this that the defendant’s intention was to establish business relationships with consumers in Austria.The Supreme Court upheld the defendant’s appeal, in that the decisions of the appeals court and of the Court of First Instance must be modified so that the defence of lack of international competence is discarded.