Oberster Gerichtshof; 2014-07-15; R, GenmbH; J; 10 Ob 21/14g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0100OB00021.14G.0715.000
Date: 2014-07-15
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT0715(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian bank business (the „plaintiff“) claimed money from a German natural person (the „defendant“) in the court. The plaintiff had concluded a loan agreement with the defendant to finance the purchase of an apartment in Munich and despite maturity, the defendant had not paid the credit balance.
The jurisdiction of the Court of First Instance (Landgericht Feldkirch, Austria) is based on the agreement on the jurisdiction of the loan agreement.
The defendant denied and objected the international jurisdiction of the Court of First Instance. As a resident in Munich and as the loan agreement was concluded in Munich, jurisdiction was with District court Munich II (Amtsgericht München II).
The Court of First Instance dismissed the action due to lack of international jurisdiction. The defendant was a consumer within the meaning of Article 15(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation"). However, not all conditions of a consumer contract were fulfilled because the plaintiff had not directed its activities to Germany. The applicant did have to bring the action in District court Munich II.
The appeals court (Oberlandesgericht Innsbruck) upheld the plaintiff’s appeal. The matter was not a consumer contract, which is why the agreement on the jurisdiction in the loan agreement is permissible under Article 23 of the Brussels I Regulation.
However, the appeal was permissible due to lack of case law on whether the mere signing of a contract in the consumer’s state of residence was sufficient to establish aligned business activities in another Member State.
The defendant’s appeal in the Supreme Court of Justice (the „Supreme Court“) is permissible and entitled.
As the Supreme Court suggests in its decision, it is indisputable that the defendant is a consumer within the meaning of Article 15(1) of the Brussels I Regulation.
However, it is disputed whether a necessary connection was established between the contract negotiations in Germany and the plaintiff’s business activity by a plaintiff’s performing of business activities in Germany or by a aligning of its business activities to Germany.
Signing the loan agreement in Munich is not a criterion of aligning the activities to another Member State in itself. It is essential in this case whether the trader, the financial advisers who brokered the deal between the plaintiff and the defendant, wanted to do business with consumers resident in another Member State before the conclusion of the loan agreement. That is whether the trader was committed to the conclusion of a contract.
In the present case, aligning of business activities to Germany is affirmative. Although the financial adviser had no explicit mandate to acquire German customers and though the advisor did not receive payment for acquiring German customers, the advisor’s regular activity produced a contact to customers in Germany with the plaintiff’s knowledge and intent.
There is enough evidence to establish that the plaintiff’s activity was aligned in Germany within the meaning of Article 15(1)(c) of the Brussels I Regulation.
The Supreme Court followed the defendant’s appeal in changing the appeals court’s decision to restore the decision of the Court of First Instance and dismissing the action regarding claims arising from the loan agreement due to lack of international jurisdiction.