Oberster Gerichtshof, Urteil vom 21/11/2006 4 Ob 218/06x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:0040OB00218.06X.1121.000
Date: 2006-11-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT1121(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiffs are attorneys having their seat in Salzburg (AT). They commenced proceedings before the Austrian court at the place where their law firm was situated against the defendant, domiciled in Germany, seeking payment of attorney's fees for legal counselling. They asserted that they had represented the defendant regarding a claim settlement after a water damage in one of the defendant's apartments in M. (AT). In order to establish jurisdiction, they referred to Article 5(1) (b) Brussels I Regulation. The defendant challenged the international jurisdiction of the Austrian courts. She alleged being a consumer and asserted that she had mandated the plaintiffs due to an advertisement of their law firm on the internet, which was also directed towards Germany. The apartment was a holiday home which she also rented to friends for a compensation fee. The appellate court affirmed the jurisdiction of the Austrian courts. The defendant appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that Article 15 Brussels I Regulation has to be interpreted in a restrictive way according to the ECJ's jurisprudence in Gruber (ECJ 20.01.2005 - 464/01). Furthermore, according to the ECJ's judgment of 03.07.1997 - 269/95 - Benincasa, the protection sought to be afforded to consumers is unwarranted in the case of contracts for the purpose of a professional activity planned for the future. Thus, the fact that an income is obtained from the holiday apartment is sufficient to disqualify the case as being a matter relating to a consumer contract. Where an income is regularly obtained from an immovable property, a private use by the end consumer cannot be assumed. The court finds that the defendant also demonstrated a specifically calculated loss of rent for several months to the plaintiffs for the purpose of the damage account. Therefore, the matter does not relate to a consumer contract.