Oberster Gerichtshof, Beschluß vom 28/10/1997 4 Ob 313/97a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1997:RS0108680
Date: 1997-10-28
Subject matter: Lugano Convention
Origin: Austria

81997AT1028(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a brewery having its seat in Austria, requests before an Austrian court, having its seat in Italy, payment from the defendant for services provided on the basis of contracts for the delivery of beer that a company, which merged with the defendant, allegedly owes to it. The jurisdiction concerning the claim, which is based on a disclaimer which the old company did not comply with, would result according to Article 17(a) Lugano Convention from the jurisdiction clause contained in the partnership contract concluded in parallel. The court of first instance considered itself competent since the defendant had also exceeded to the rights of the old company in these contracts. However the court of appeal considered itself incompetent, since it had neither been proven by documents that a jurisdiction agreement had been concluded, nor that a choice of place of performance had been made.
The OGH (AT) considers first that the partnership contract contains indeed a jurisdiction agreement within the meaning of Article 17(a), however it does follow from this document, that it also applies to the disclaimer agreement concluded on the same day by the parties. On the other hand, the formal requirements laid down in Article 17 Lugano Convention are not to be applied to an agreement on the place of performance. It is sufficient that it is effective according to the applicable law. Thus according to Austrian law, the place of performance can be agreed on without any formalities. Thus, it still has to be examined whether the contracts concluded between the parties form a unity in this regard, which can also be done through the hearing of a witness. From that, a jurisdiction at the place of performance agreed by the parties, according to Article 5(1) Lugano Convention, could follow.