Oberster Gerichtshof, Urteil vom 20/02/2003 6 Ob 12/03p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117476
Date: 2003-02-20
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0220(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a bank having its seat in Austria. It claimed before an Austrian court that the defendant, a limited liability company having its seat in Germany, should repay several loans. Two managing directors of the defendant company acted as guarantor for these loans to the plaintiff, as a result of which they were also sued for payment. Jurisdiction was conferred to the Beziregericht of Leibnitz (AT). The defendant guarantors, domiciled in Germany, claim that they acted as consumers and deny the jurisdiction of the Austrian courts, as the jurisdictional clauses contained in the loan and guarantee contracts do not fulfil the requirements set out in Article 15 of the Brussels Convention with regard to consumers. The court of second instance rejected jurisdiction by referring to jurisprudence concerning the concept of “consumer” in Para. 1 of the Konsumentenschutzgesetz [Consumer Protection Act (AT)]: The directors managing the company and acting as guarantor are not commercially active themselves; an exemption exists only for sole shareholders.
The OGH (AT) holds, however, that the jurisdictional rules regarding consumers in Article 13-15 Brussels Convention do not apply to the two defendant guarantors and accordingly the Austrian courts do have jurisdiction. The loans provided by the plaintiff, insofar as they were granted for the purchase of current assets and movable goods, are fundamentally governed by Article 13(2) Brussels Convention. However, the guarantees for the loans served the commercial purposes of the two guarantors, as they gave the guarantees in their roles as shareholder and director of the limited liability company borrowing from the plaintiff. Thus, they did not act as private consumers for the purpose of satisfying their own needs, as deemed necessary by the ECJ in C-269/95, Benincasa-Dentalkit.