Oberster Gerichtshof, Urteil vom 28/05/2002 4 Ob 116/02s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116420
Date: 2002-05-28
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0528(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, domiciled in Germany, lodged a claim demanding the repayment of tuition fees from the defendant, a school for the apprenticeship of naturopaths domiciled in Austria, because the school had misinformed her as to the state recognition of the apprenticeship in Austria and because the school was no longer able to provide educational services, having closed in the interim. The court of first instance in Vienna (AT) dismissed the claim for lack of international jurisdiction. On the claimant’s appeal, the decision was overturned by the Bezirksgericht of Vienna, which found the Vienna court to have jurisdiction. The defendant lodged an appeal on a point of law against this decision before the OGH (AT).
The OGH finds the appeal on a point of law to be without merit. This is a case about jurisdiction under Article 5(1) Brussels Convention. The term, as used in this provision and which is to be interpreted independently within the Convention, encompasses both claims arising from principle contractual obligations and also claims arising from secondary contractual obligations, such as damages or reimbursement, which arise in place of the non-performance of the principle contractual obligation. To determine the place of performance, one does not consider the place where the legally substantiated claims for reimbursement were routinely made, but the place of performance of the contractual obligation, whence the infringement of which this claim for reimbursement derives. In this case, it is insignificant whether one considers the place of performance to be that of the principle contractual obligations of the defendant or that of the claimant’s obligation to pay, as in both cases the place of performance is Vienna. As a result, the international and local jurisdiction of the Vienna court under Article 5(1) Brussels Convention is sustained.