Oberster Gerichtshof, Urteil vom 10/07/2008 8 ObA 33/08y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:008OBA00033.08Y.0710.000
Date: 2008-07-10
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0710(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, having its seat in Germany, employed the plaintiff as field sales representative mainly for the area of Southern Germany/Austria. The plaintiff established his office at his domicile in Austria from where he carried out his work. He performed 37% of his work in the area of Southern Germany and 63% in Austria. From the end of 2006 until April 2007 the plaintiff was on sick leave. In February 2007, the defendant informed the plaintiff about his transfer to Berlin (DE). However, due to his illness, the plaintiff was unable to assume this position. End of April, the plaintiff resigned from the employment relationship. He commenced proceedings before the court at his domicile seeking various payments based on the employment relationship. He asserted that the court had jurisdiction according to Article 19 Brussels I Regulation.
The OGH (AT) affirms the international jurisdiction of the Austrian courts. It holds that the concept of “habitual place of work” within Article 19(2) (a) Brussels I Regulation has to be interpreted in an autonomous way. Where an employee performs the obligations arising under his contract of employment in several Contracting States the relevant place is the place where, or from which, taking account of all the circumstances of the case, he in fact performs the essential part of his duties. In this case, the plaintiff's habitual place of work was in Austria where had an office and where he performed 63% of his work. The plaintiff’s transfer to Germany is irrelevant for the determination of his habitual place of work. The transfer has no factual impact as the plaintiff did not assume the new position. According to the court, reference to Article 19(2) (b) Brussels I Regulation cannot be made. The latter only applies where no habitual place of work exists. In this case however, the plaintiff performed more than 60% of his work in Austria. Thus, a habitual place of work can be definitely determined.