Oberster Gerichtshof, Urteil vom 17/04/2002 # 7 Ob 127/01d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:0070OB00127.01D.0417.000
Date: 2002-04-17
Based on: Provisional data
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0417(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff made several deliveries of cattle to the Italian first defendant. He obtained collection-only cheques as payment from the latter, which were not cashed by the drawee bank, the second defendant. The plaintiff commenced proceedings against the second defendant, having its seat in Italy, seeking damages as he had trusted that the cheques would be cashed. He alleged that the second defendant did not protest the cheques within the period granted by law. Furthermore, the second defendant had failed to withdraw the first defendant the right to draw cheques, after the latter's cheques had been protested on a number of occasions in the past. Thus, the plaintiff held that the second defendant was liable to him as he had continued to make deliveries trusting that he would be paid. He asserted that jurisdiction of the Austrian courts at the plaintiff's seat followed from Article 5(3) Brussels Convention, or alternatively Article 5(1) Brussels Convention. The appellate court dismissed the action for lack of jurisdiction. The plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal and affirms the appellate judgment. It holds that the Austrian courts lack international jurisdiction over the claim against the second defendant. There is no contractual relationship between the cheque receiver and the drawee bank. Thus, jurisdiction cannot be established according to Article 5(1) Brussels Convention. Neither can Article 5(3) Brussels Convention be applied to the claim. The pecuniary damages alleged by the plaintiff are consequential damages which arose from the primary damage caused by the non-payment of the cheques. According to the ECJ's jurisprudence, pecuniary damages which arise as mere consequential damages cannot establish jurisdiction according to Article 5(3) Brussels I Regulation.