Oberster Gerichtshof, Urteil vom 17/02/2005 6 Ob 148/04i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0060OB00148.04I.0217.000
Date: 2005-02-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0217(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, brokered chartered flight contracts with travel companies as an agent for the defendant, a Greek chartered flights company. She brought an action before an Austrian court for payment of commissions and compensation on grounds of the untimely termination of the relationship. The international jurisdiction of the court seised was contested by the other party. The court of first instance as well as the court of appeal referred to Article 5(1) (b) Brussels I Regulation. The court of first instance held that the place of result was the place of performance due the doctrine of the place of realisation applicable to agency contacts. This was situated in Greece since the defendant concluded the contracts for charter flights there. The court of appeal, however, referred to the seat of the plaintiff in Austria, where she worked as broker and thus declared itself competent. The defendant lodged an appeal in cassation.
The OGH (AT) decides that the Austrian courts are internationally competent. The plaintiff produced circumstances which conclusively justified the existence of a contractual relationship. The international jurisdiction arises from this as it is sufficient that the plaintiff conclusively demonstrates a contractual relationship. The term of "service" in Article 5(1) (b) Brussels I Regulation, which is to be interpreted independently, covers all contracts for the production of a factual result in return for renumeration, and not merely, such as in the case of an employment contract, for the performance of an activity. An agency contract falls within this broad concept of service. For the determination of the place of performance of a agency contract within the meaning of Article 5(1) (b) Brussels I Regulation, the agreement between the parties or, alternatively, the seat of the agent, at which the agent performs his activities, is relevant.