Bezirksgericht Neusiedl, Urteil vom 19/03/2009 6 C 1136/08g
Decision by national courts in the field of European Union law — ECLI:AT:BG00320:2009:RW0000443
Date: 2009-03-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0319(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant operated a coffee shop in Berlin (DE) under a franchise agreement concluded with the plaintiff. The plaintiff brought an action against the defendant before the Bezirksgericht of Neusiedl (AT) seeking payment of franchise fees. The defendant initially responded to the complaint with a written pleading without challenging the international jurisdiction of the court. Thereafter, during the first court hearing, the defendant raised an objection to the international jurisdiction of the Austrian courts immediately following the plaintiff's pleadings.
The Bezirksgericht of Neusiedl (AT) dismisses the action for lack of jurisdiction. It determines whether the defendant has established jurisdiction pursuant Article 24 Brussels I Regulation by entering an appearance without contesting jurisdiction. The deadline for challenging jurisdiction is not regulated in Article 24. Thus, the national law of civil procedure of the ruling court must be applied. Under Austrian law, challenges to jurisdiction are still allowed to be made during the defendant's appearance at the first court hearing. This is what the defendant did; thus he did not enter an appearance without challenging jurisdiction in terms of Article 24.  Jurisdiction can also not be based on Article 5(1) Brussels I Regulation under which jurisdiction lies with the courts of the place of performance of the obligation in question and which the plaintiff calls upon. The court refers to the provision in Article 5 (1)(b) Brussels I Regulation in which, for contracts of sales and services, the contractual place of performance is autonomously and uniformly tied to the place where the respective services typical to the type of contract are performed. Regarding franchise contracts, this is the place of business of the franchisee, in this case Berlin, where the defendant operated his coffee shop. Consequently, jurisdiction based on Article 5(1) Brussels I Regulation is not available for the action.