Oberster Gerichtshof, Beschluß vom 20/01/1999 9 ObA 247/98h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0111621
Date: 1999-01-20
Subject matter: Lugano Convention
Origin: Austria

81999AT0120(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff worked from his domicile in Austria as commercial agent for a company having its seat in Finland as well as on his own account. He commenced proceedings before the Austrian labour court at his domicile seeking various claims based on the termination of the agency relationship. The defendant challenged the jurisdiction of the Austrian courts. The lower courts denied jurisdiction and dismissed the action. The plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that international jurisdiction is determined according to the Lugano Convention. The plaintiff cannot rely on the jurisdiction of the labour court he seised as the court at the place where the employee habitually performs his work according to Article 5(1) Lugano Convention. In order to establish such jurisdiction he would have to make claims arising from an employment relationship. An employment contract requires a dependent activity according to instructions, whereby the employee is permanently integrated in the employer's business. This cannot be assumed in this case as the plaintiff himself bases his claim on an "independent agency relationship". Therefore jurisdiction can only be established if according to the general rule within Article 5(1) Lugano Convention, the place of performance of the claims raised by the plaintiff is Austria. According to Austrian conflict of law rules, Austrian law is applicable to the agency relationship on which the plaintiff bases his claim. According to Austrian law, the place of performance with regards to money debts as claimed by the plaintiff, is situated at the debtor's seat, which is in Finland in this case. Thus, the Austrian courts lack jurisdiction.