Oberster Gerichtshof, Urteil vom 06/06/2006 4Nc17/06x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:0040NC00017.06X.0606.000
Date: 2006-06-06
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT0606(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant lives in Austria. He bought a car from the defendant, having its seat in Germany, and imported it to Austria. The applicant asserted that the car was not roadworthy at the time it was handed over to him and sought payment under a warranty. He applied to the OGH (AT) for a determination of local jurisdiction by way of a so-called "ordination". He asserted that the Austrian courts had jurisdiction on the ground that the matter related to a consumer contract. Thus, he could seise the courts of the State of his domicile, Austria, according to Article 16(1) Brussels I Regulation.
The OGH (AT) dismisses the application. It holds that the case does not relate to a consumer contract. Not every legal transaction performed by a consumer can be considered a consumer contract. Article 15 Brussels I Regulation limits the scope of the special rules of jurisdiction over consumer contracts to three types of contracts. The applicant has failed to prove that he concluded a contract for the sale of goods on instalment credit terms or for a loan repayable by instalments. He furthermore failed to demonstrate that the respondent directed his activities of promoting cross-border sales towards Austria. The provisions of the Brussels I Regulation regarding consumers only protect the "passive" consumer, whose contractual partner pursues commercial or professional activities in the Member State of the consumer's domicile. However, the provisions do not protect "active" consumers, who take the initiative to go abroad and to conclude agreements there, such as the applicant. Thus, the applicant cannot rely on the choice of forum provided for by Article 16 Brussels I Regulation. The OGH states furthermore that Article 16 Brussels I Regulation also regulates local jurisdiction, which thus, is already determined. Hence, an "ordination" is unnecessary.