Oberster Gerichtshof, Urteil vom 28/07/2005 8 Nc 42/05a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0080NC00042.05A.0728.000
Date: 2005-07-28
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82005AT0728(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff booked a holiday in Tuscany with the defendant seated in Germany. The defendant had sent correspondence to the domicile of the plaintiff in Austria containing an offer and advertising prior to the conclusion of the contract. The plaintiff brought an action before the Bezirksgericht of Feldkirch (AT), which was the competent court at his domicile, for damages on the grounds of shortcomings in the holiday. The plaintiff based the international jurisdiction of the court on the grounds that the matter concerned a trip which had being booked by himself in a private capacity and, therefore, concerned a consumer matter. Thus, the Austrian courts at his domicile were competent. In the case that the Bezirkgericht of Feldkirch was locally incompetent, the plaintiff requested the selection of a locally competent court by the process of ordination before the OGH (AT).
The OGH (AT) holds that the Brussels Convention is applicable to the action, which was brought before the Brussels I Regulation came into force. Pursuant to Article 13 (1) (3) Brussels Convention, in proceedings concerning a contract concluded by a person for a purpose which can be regarded as being outside his trade or profession and if the further requirements of the provisions are fulfilled, then a consumer contract exists. The subject matter of the contract concluded by the plaintiff concerned the supply of a service. It was preceded by an express offer in the State of the plaintiff by the defendant (Article 13(1) (3) (a) Brussels Convention). Moreover, the plaintiff as the consumer took the necessary legal actions necessary in his State for the conclusion of the contract (Article 13(1) (3) (b) Brussels Convention). Therefore, a consumer contract was created. The OGH determines a competent court as the rules regarding consumer matters in the Brussels Convention do not govern local jurisdiction.