Oberster Gerichtshof, Urteil vom 16/01/2001 5 Ob 4/01a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0114685
Date: 2001-01-16
Subject matter: Lugano Convention
Origin: Austria

82001AT0116(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff sought from the defendant, having its seat in Luxembourg, the payment of an invoice for the sale and delivery of an appliance to the defendant. It alleged that the invoice contained a note that payment had to be made in Lochau (AT) and that the same place had jurisdiction over disputes arising from the transaction. The invoice had been personally handed over by the plaintiff’s manager to the defendant and was accepted without objection. The Austrian court of first instance dismissed the claim of the plaintiff due to lack of international and territorial jurisdiction as well as lack of jurisdiction as regards the substance. The court of appeal likewise dismissed the plaintiff’s appeal.
The OGH (AT) dismisses the appeal. It holds that the special provisions in Article I(2) of the Brussels Convention Protocol and respectively of the Lugano Convention Protocol No.1, regarding prorogation, concern any prorogation in the sense of Article 17 Lugano Convention, not only the ones in paragraph 1(a). The acceptance of an invoice containing a jurisdiction clause, without objection, does not constitute the requested special form of an express or specific acceptance of an agreement conferring jurisdiction by the party having its seat in Luxembourg. The place of performance does not have to be determined in this case, since the jurisdiction of the place of performance in matters relating to contract, according to Article 5(1) Lugano Convention, cannot be applied due to the special provision for defendants from Luxembourg.