Oberster Gerichtshof, Beschluß vom 19/05/2005 6 Ob 19/05w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0060OB00019.05W.0519.000
Date: 2005-05-19
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82005AT0519(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a farmer and owner of a farm situated in Austria. He bought some tiles from the defendant, a company seated in Germany, which sells amongst other things construction materials, to replace the roof tiles of his farm building which he uses 62% for residential purposes. He claimed from the defendant, on the basis of faulty goods, reimbursement of the purchase price as well as compensation. The court of first instance considered that it concerned a consumer case and according to Article 13(1) Brussels Convention declared itself competent, while the court of appeal rejected this, on the ground that the business of a farmer is ‚on the face of it, to be attributed to the farmer’s professional activity.
The OGH (AT) referred to the ECJ the question, when is a consumer case within the meaning of Article 13 Brussels Convention at hand, in the case of a partly private and partly commercial or professional use. It finds by reference to the decision of the ECJ of 20.1.2005 (C-464/01) that even in the case of a mainly private use of the farm, its professional use does not have a completely negligible role. Only in the case, where the commercial or professional activity of the alleged consumer is so negligible that it becomes secondary, can one infer a consumer case. However, this cannot apply for the extensive use of the farm building as cowshed and for the storage of the fodder.