Oberster Gerichtshof, Urteil vom 25/09/2001 10 Nd 512/01
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0115826
Date: 2001-09-25
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT0925(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria sued a mail-order firm domiciled in Germany for the payment of an assured prize. By way of a letter personally addressed to the plaintiff, the defendant gave the impression to her, that she had won a certain amount of money and that she only had to claim it. The condition for the prize consisted of “a trial order of goods with no obligation”. The plaintiff sent back the application for the prize with the trial order for the goods. However she did not receive the prize promised. The plaintiff founds the jurisdiction of the Austrian courts on Articles 13, 14 Brussels Convention, since according to the plaintiff it concerns a consumer matter within the meaning of Article 13(3) Brussels Convention.
The OGH (AT) refers to the decision of the ECJ of the 5.10.1999 in the case C-420/97 - Leathertex Divisione Sintetici. The ECJ decided that with regard to Article 5(1) Brussels Convention, not one and the same court is competent, where different claims result from the same contract but these claims are to be executed in different States. In this case, it results from Article 13 (3) Brussels Convention that the delivery of the movable goods can be classified as a consumer matter. However, it is not clear whether this can be extended to the claims concerning the raffle related to them. In this regard, one has in general to request a preliminary ruling of the ECJ. Since an identical question of the OGH concerning the case 5 Nd 522/99 was referred to the ECJ and is pending, the court will wait for the result of that request.