Oberster Gerichtshof, Urteil vom 03/05/2000 9 Nd 503/00
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:0090ND00503..0503.000
Date: 2000-05-03
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82000AT0503(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff residing in Austria bought from an Austrian company, two relaxation beds filled with water and air. The vendor of this Austrian company had given to the plaintiff, after making the delivery, a certificate of the German defendant party which confirmed a three years guarantee. After using the beds for a year, the valves became permeable, and the plaintiff was obliged nearly every day to reinflate the beds. The plaintiff brought an action against the German defendant on the basis of a “guarantee contract” and requested the determination of the competent Austrian court.
The OGH (AT) finds that the jurisdiction of the Austrian courts does not result from Articles 13, 14 Brussels Convention. A consumer matter within the meaning of Article 13(1)(3) Brussels Convention is only at hand if a) a specific invitation or an advertisement precluded the conclusion of the contract in the state of the consumer’s domicile and b) if the consumer took in that State the steps necessary for the conclusion of the contract. On the one hand, it is doubtful that the promise for guarantee invoked by the plaintiff falls within the concept of “service” respectively “delivery of goods”, which is to be determined autonomously. In any case, the required further condition of a previous specific invitation or an advertisement of the defendant in Austria is missing.