Oberster Gerichtshof, Urteil vom 15/01/2002 5 Ob 312/01w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116405
Date: 2002-01-15
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0115(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Vienna (AT), lent her vehicle to the defendant, her partner at the time who is domiciled in Berlin (DE), during a stay in Berlin to use it temporarily. Soon afterwards she returned to Vienna. Later, she brought an action in Vienna for damages against the defendant. She claimed to have an agreement with the defendant that he would repair her vehicle and then bring it to her in Vienna. As defendant allegedly refused to do this, she claimed that she was forced to sell the car in Berlin on unfavourable terms and, thus, suffered a considerable loss. The plaintiff grounded jurisdiction on Article 5(1) Brussels Convention. The defendant asserted a lack of international jurisdiction. He lodged an appeal to the OGH (AT) after his challenge to the jurisdiction of the court was dismissed. He asserted that he had not been informed of the factual assertions of the plaintiff grounding jurisdiction.
The OGH dismisses the appeal. Pursuant to Article 20 Brussels Convention the court must of its own motion dismiss an action when the defendant, domiciled in another Contracting State of the Brussels Convention, does not enter an appearance and the jurisdiction of the court cannot be otherwise grounded on the provisions of the Brussels Convention. The jurisdiction in matters relating to a contract pursuant to Article 5(1) Brussels Convention is also founded when the existence of the contract is in dispute. In regards to "facts of double relevance" which are of relevance both to the founding of jurisdiction and also to the grounds for the action, the conclusive presentation of facts by the plaintiff is sufficient for the grounding of jurisdiction. The plaintiff has asserted an agreement as to the place of performance in stating that the defendant had agreed to repair the vehicle and then bring it to her in Vienna. This is sufficient for the conclusive grounding of jurisdiction pursuant to Article 5(1) Brussels Convention.