Oberster Gerichtshof, Beschluß vom 15/02/2000 5 Nd 522/99
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0113168
Date: 2000-02-15
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82000AT0215(04)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria received a letter from the defendant domiciled in Germany which gave him the feeling that he had won an amount of money that he only had to claim. The condition for the payment was to order goods. The plaintiff now requests his prize from the defendant and bases himself on para 5j KSchG (AT). He states that this claim is finally based on the culpa in contrahendo with regard to a consumer contract, for which the Austrian courts have international jurisdiction according to Article 13 Brussels Convention. The plaintiff claims the determination of the competent court.
The OGH (AT) raises on the one hand the question whether Para 5j KSchG actually regulates a contractual claim. Indeed, a right to claim the payment of the prize promised by the entrepreneur is granted to the consumer, but for the grant of this statutory right, a fictive contractual relationship between the entrepreneur and the consumer is presumed. A contract formation process which would be necessary for a claim based on a culpa in contrahendo is however not invoked in the legal provision. It would also be conceivable to classify the claim for damages as arising from a tortuous act. Thus the OGH feels obliged to refer the question to the ECJ for a preliminary ruling whether the right granted to a consumer according to para § 5j KSchG (AT) constitutes a contractual claim pursuant to Article 13(3) Brussels Convention or a contractual claim according to Article 5(1) Brussels Convention, or instead a claim resulting from a tort pursuant to Article 5(3) Brussels Convention.