Oberster Gerichtshof, Urteil vom 02/09/2003 1 Ob 123/03z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117975
Date: 2003-09-02
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82003AT0902(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff delivered printing machines, at first as goods on consignment, to the defendant in Italy. After the delivery, the defendant purchased the goods. The plaintiff sought payment of the sales price before the Austrian courts. The lower courts dismissed the action for lack of jurisdiction.
The OGH (AT) firstly holds that the forum provided by Article 5(1) (b) Brussels I Regulation applies to all claims, including the claim for payment of the sales price. The place where the goods have to be delivered by the seller is the place of performance. Where a sale on consignment is substituted by a purchase agreement, the seller fulfills his obligation of handing over the goods by merely leaving them at the place where they were delivered anyway. The initial delivery "on consignment" does not alter this finding provided that the commission merchant later purchases the goods he kept in custody. Thus, the place of performance, according to Article 5(1) (b) Brussels I Regulation, is situated at the seat of the defendant in Italy.