Oberster Gerichtshof, Urteil vom 04/10/2004 2 Ob 206/04i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0119468
Date: 2004-10-04
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT1004(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, an Austrian building and interior decoration company, was assigned by the defendant, domiciled in Germany, to undertake and to clarify with the local authorities the planning of an extension of a building in Germany. When there was no prospect for an official permit, the plaintiff invoiced the services rendered to the defendant and commenced, due to a jurisdiction agreement, proceedings in Austria. The court of first instance assumed a consumer contract and therefore declared itself incompetent, which was confirmed by the appellate court.
The OGH (AT) holds that it depends on whether the plaintiff exercised a professional or commercial activity in the State of domicile of the consumer, here the defendant, within the meaning of the first alternative in Article 15(1) (c) Brussels I Regulation. Since the employees of the plaintiff made their appearance before the German authorities, in order to clarify the question of the permission of the building project, the entire services charged by the plaintiff were furnished in the State of the defendant’s domicile. Thus, obviously the plaintiff became there commercially active, even if it accomplished such a business for the first time. Actually it already had been furnishing such cross-border services in Germany since approximately 30 years. If, for the purpose of the first alternative in Article 15(1) (c) Brussels I Regulation, it is furthermore necessary that the specific contract entered into falls within the range of the this activity, this condition would also be fulfilled: The basic determinations including preliminary talks with the building authority are among the normal business activities of an enterprise like the one operated by the plaintiff.