Oberster Gerichtshof, Urteil vom 22/10/2007 1 Ob 90/07b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:RS0123075
Date: 2007-10-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT1022(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An Austrian consumer commenced proceedings before the court of her domicile against a German company, seeking outpayment of a prize she had been notified of by the latter, which had not been made dependent of an order of goods. The Austrian courts accepted jurisdiction according to Articles 16(1), 15(1) (c) Brussels I Regulation. The defendant in those proceedings sought damages on the basis of public liability, due to the losses he had incurred because the appellate court had affirmed the jurisdiction of the Austrian courts without referring the question to the ECJ for a preliminary ruling. Thus, according to the defendant, the court had infringed its obligation to refer imposed by Article 234 EC.
The OGH (AT) holds that the appellate court did not infringe its obligation to refer. At the time the appellate court pronounced its judgment, the ECJ had merely determined jurisdiction over such prize notifications which were linked to a prior order of goods, however not over isolated prize notifications. Thus, due to the imperative autonomous interpretation of the concepts used within the Brussels I Regulation, the appellate court was obliged to consider the jurisprudence of other Member States for its own interpretation. This obligation follows from the objective of the Brussels I Regulation which according to its Recital no.2 is to unify the rules of jurisdiction of the Member States in cross-border proceedings. The court finds that the appellate court had observed in particular the recent jurisprudence of the German Bundesgerichtshof, according to which international jurisdiction over actions regarding isolated prize notifications could be based on Article 13 or 5(3) Brussels Convention. Thus, it is acceptable that the appellate court held that a reference to the ECJ was unnecessary, after it had diligently examined the question.