Oberster Gerichtshof, Urteil vom 16/04/2007 8 Nc 7/07g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0080NC00007.07G.0416.000
Date: 2007-04-16
Subject matter: Lugano Convention
Origin: Austria

82007AT0416(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, obtained an invoice from the defendant company, having its seat in Switzerland, regarding a “Julius Caesar - 25 Dollar". The plaintiff informed the defendant that he had not ordered any goods from the latter. Nevertheless, he continued to receive demands for payment. Thus, he commenced proceedings before the Austrian court at his domicile seeking a declaration that he did not owe the defendant the amount claimed. He contended that the Austrian courts had international jurisdiction, as the matter related to a consumer contract according to Article 13 Lugano Convention, and thus, he could institute proceedings at his domicile. Furthermore, he applied to the OGH (AT) for a preliminary determination of local jurisdiction by way of a so-called “ordination”.
The OGH (AT) dismisses the application for an ordination. It holds that the plaintiff’s negative declaratory action does not constitute a matter relating to a consumer contract. Of all the alternatives provided under Article 13(1) Lugano Convention, only alternative no.3 (supply of goods) could come into consideration. The latter requires a double geographic connecting link to the consumer's State of domicile. It requires firstly that in the State of the consumer's domicile the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and secondly, that the consumer took in that State the steps necessary for the conclusion of the contract. The latter requirement is not fulfilled in this case. Rather, the plaintiff pleads that he did not conclude a contract with the defendant. Thus, as the case is not a matter relating to a consumer contract according to Article 13(1) Lugano Convention, the plaintiff cannot bring proceedings before the court having jurisdiction over consumer contracts. As the international jurisdiction of the Austrian courts cannot be established otherwise either, an ordination cannot be considered.