Oberster Gerichtshof, Urteil vom 18/11/2003 4 Ob 191/03x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0118234
Date: 2003-11-18
Subject matter: Lugano Convention
Origin: Austria

82003AT1118(09)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Austria, sold and delivered hens to the defendant, having its seat in Switzerland. He claimed the outstanding balance of the sale price from the defendant before an Austrian court. The defendant contested the international jurisdiction of the Austrian courts because the jurisdiction for payment of the sale price should be determined according to national, in this case Austrian, law, and should therefore be located at the debtor’s domicile, i.e. Switzerland. This notion was confirmed by the Court of First Instance, while the Court of Second Instance decided that the jurisdiction was the seller’s place of business in Austria, according to the CISG.
The OGH (AT) holds that the place of performance in Article 5(1) Lugano Convention is to be determined according to substantive uniform law, if this is to be applied independently from the conflict of laws rules. According to the OGH, this applies to the CISG, which applies in the present case. According to Article 57 (1) (a) CISG, the debt for the purchase price is to be discharged at the seller’s place of business. The jurisdiction of the place of performance is therefore also located here according to Article 5(1) Lugano Convention. Accordingly, the seller can sue for the purchase price at his own seat. The ECJ on the 29 June 1994 (C-288/92), the Italian Corte di Cassazione on the 19 February 1998, and the Swiss Federal Court on the 18 January 1996, all decided in line with this reasoning.