Oberster Gerichtshof, Beschluß vom 23/05/2005 10 Ob 21/04t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0100OB00021.04T.0523.000
Date: 2005-05-23
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82005AT0523(04)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is an Italian lawyer. The second defendant is the authorised managing director of the first defendant, an Austrian limited liability company for which the plaintiff worked as lawyer. The second defendant had personally granted him a loan. The plaintiff commenced proceedings before the Austrian courts against both defendants seeking  payment of legal fees. The second defendant brought a counterclaim seeking repayment of the loan. He asserted that the court had international jurisdiction over the counterclaim on the ground that it had been agreed that Austria would be the place of performance for the repayment of the loan. The plaintiff challenged the jurisdiction of the Austrian courts over the counterclaim.
The OGH (AT) refers to the Brussels Convention as the counterclaim was initiated before the reference date of 1.3.2002 within Article 66(1) Brussels I Regulation. As the plaintiff is domiciled in Italy, international jurisdiction has to be established by reference to Articles 5 and 6 Brussels Convention. Jurisdiction over the counterclaim cannot be based on Article 6(3) in this case, as the requirement of a close connection, which is to be narrowly interpreted, is not fulfilled. In order to determine the place of performance under Article 5(1) Brussels Convention, reference has to be primarily made to the place of performance stipulated by contract. Only where there is no such agreement, the place of performance has to be determined under the law governing the obligation in accordance with the rules of conflict of laws of the court before which the matter is brought pursuant to the continuous jurisprudence of the ECJ ("Tessili-Rule", ECJ 29. June 1994, C 288/92). The OGH affirms the appelate judgment, by which the proceedings were remanded to the court of first instance on the ground that it had failed to determine whether according to the agreement between the parties the loan had in fact to be repaid in Austria.