Oberster Gerichtshof, Beschluss vom 26/03/2009 6 Ob 24/09m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125001
Date: 2009-03-26
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0326(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff operates a hotel in Austria. She advertises, among other things, different categories of rooms including prices on a website also accessible from Germany. However, it is not possible to book a room directly through the website. The defendant is a consumer and lives in Germany. He reserved multiple rooms for the New Year's weekend using an E-mail address which was made available through the plaintiff's website. Following his arrival, the defendant found fault with the rooms and immediately left the hotel. The plaintiff brings an action before the Bezirksgericht of St. Johann im Pongau (AT) seeking payment for the rooms from the defendant. The defendant challenged the international jurisdiction of the Austrian courts. He asserted, pursuant Article 15 (1)(c) Brussels I Regulation, that the matter concerns a consumer matter and subsequently, he can only be sued before the  German court which has jurisdiction over his domicile. The courts of first and second instance dismissed the action for lack of jurisdiction. The plaintiff appealed to the OGH (AT).
The OGH (AT) stays the proceedings and refers the matter to the ECJ for a preliminary ruling. The OGH points out that it - the same senate - already submitted the identical question a few months prior to the ECJ for a preliminary ruling which was decided on 06.11.2008. The identical question being namely whether a website which can be accessed from another Member State is sufficient for a presumption of the existence of a consumer matter in terms of Article 15 (1)(c) Brussels I Regulation, or whether additional requirements are necessary. This question was referred for a preliminary ruling in that case only in the alternative. It is consequently not certain that the question will also be answered by the ECJ. That is why a new, unconditional submission is required before a ruling can be made concerning the case under consideration.