Oberster Gerichtshof, Urteil vom 12/09/2002 5 Ob 130/02g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0117157
Date: 2002-09-12
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0912(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff contracted to produce a gun for the defendant, domiciled in Belgium. In addition to agreeing to the Austrian jurisdiction, it was agreed that, during manufacture, the plaintiff could claim a deposit of up to 50% of the remuneration. The plaintiff claimed this amount. The court of first instance found that the jurisdiction agreement was valid, since no consumer matter existed, however it considered itself incompetent as to the subject. This was dismissed by the court of appeal.
The OGH (AT) holds firstly that, in relation to the agreement conferring jurisdiction, the court must examine the defendant’s assertion that, due to deception, no real agreement of the parties exists. According to the objectives of the drafters of the Brussels Convention, agreements conferring jurisdiction under Article 17 Brussels Convention should not become part of a contract without notice; the mutual consent of the parties should, in this case, be judged according to Austrian law (lex causa). As a matter of principle, the agreement conferring jurisdiction is acceptable, since it is not a consumer matter pursuant to Article 13(1) Brussels Convention: It does not constitute a purchase involving payment by instalments, as it was not the defendant customer who requested monthly payments for economic reasons, but the claimant contractor who requires a deposit as security in light of the costs expected prior to completion. For this reason, the defendant cannot be viewed as a consumer needing protection, entitled to the privileged jurisdiction.