Oberster Gerichtshof, Urteil vom 15/04/2005 4 Nc 5/05f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0040NC00005.05F.0415.000
Date: 2005-04-15
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82005AT0415(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, received a letter from the defendant company, informing him that he had won a lottery and offering him some goods. The plaintiff accepted the prize and erased the reference to ordering goods. The prize notification was sent from Italy, but the defendant specified that it was registered in Costa Rica, where its seat is also located. The plaintiff brought an action for payment of the prize before the Austrian courts. The court of first instance declared that it lacked competence. The plaintiff then requested a determination of the local jurisdiction before the OGH (AT).
The OGH (AT) considers that on the basis of the jurisprudence of the ECJ regarding the transfrontier notification of prizes, where a consumer orders goods on the basis of the notification of a prize, then, under Article 13(1)(3) Brussels Convention, competence results; If, however, no goods are ordered, and only payment of the prize is requested, then, under Article 5(1) Brussels Convention, the action must be taken before the court stipulated in the contract. According to the express wording of Article 5(1), the location of the seat of the defendant in a Contracting State is required. The seat of a company is determined according to Article 53 Brussels Convention on the basis of the private international law of the lex fori. According to the seat principle accepted in Austrian private international law, the seat of a company is situated at the seat of its central administration. According to the factual observations of the court of first instance, it must be found that the seat of the central administration of the defendant is situated in Costa Rica, rather than Italy. Therefore, the Brussels Convention does not apply. Competence is also not granted under Austrian civil procedure law.