Oberster Gerichtshof, Urteil vom 15/04/1999 2 Ob 96/99b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0111896
Date: 1999-04-15
Subject matter: Lugano Convention
Origin: Austria

81999AT0415(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff concluded a consulting contract with the defendant. The contract, which was concluded in writing, contained a jurisdiction clause in favour of the courts of Heidelberg (DE). The plaintiff commenced proceedings before the Austrian court having jurisdiction over the district in which the object of the consultation was situated, against the defendant, domiciled in Italy, seeking the payment of fees. The plaintiff sought to establish jurisdiction of the Austrian courts according to Article 5(1) Lugano Convention as the place of performance of the obligation in question. He alleged that the jurisdiction agreement between the parties had only been concluded for his own benefit and thus, was not opposed to bringing proceedings in any other court, according to Article 17(4) Lugano Convention. The defendant challenged the international jurisdiction of the Austrian courts. The lower courts denied jurisdiction and dismissed the action. The plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that, according to the express provision within Article 17(1) Lugano Convention, a jurisdiction agreement has exclusive effect and thus preempts proceedings before any other court than the one agreed on. The provision within Article 17(4) Lugano Convention, according to which the party for whose benefit the jurisdiction agreement was concluded shall retain the right to bring proceedings in any other court, has to be interpreted in a restrictive way, according to the ECJ's jurisprudence of 24.06.1986 - 22/85 - Anterist. A unilateral benefit of only one party can only be assumed where the concordant will of the parties hereunto arises from the agreement itself or from the circumstances at the latter's conclusion. The fact that a jurisdiction agreement objectively benefits a party is not sufficient. Thus, the German court agreed on by the parties has jurisdiction.