Oberster Gerichtshof, Urteil vom 03/04/2008 1 Ob 205/07i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0123514
Date: 2008-04-03
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0403(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Austria, delivered 32 violins to the defendant. The violins were delivered by the plaintiff to the defendant's seat in Germany. The plaintiff brought an action for payment before the Austrian court at its seat. In order to justify the international jurisdiction of that court the plaintiff invoked Article 57 CISG in connection with Article 5 Brussels I Regulation. The defendant challenged the jurisdiction of the Austrian court. The court of first instance as well as the appellate court dismissed the action for lack of jurisdiction. The plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that the German courts at the defendant's seat have jurisdiction over the claim, as that is the place where the violins were delivered according to the agreement. Pursuant to the amendment of the forum of the contractual place of performance within Article 5(1) Brussels I Regulation, the place where the performance in kind was actually effected is now consistently relevant for the determination of the place of performance of the obligation in question. Anything else would contradict the Community legislator's intention to regulate the place of performance which is relevant for jurisdiction in an autonomous way without recourse to rules of national substantive law. Where goods are delivered to the seat of the buyer according to the agreement, jurisdiction is established at that place. In cases of an action for payment there is no longer need for a reference to Article 57 CISG, as the place of delivery is meanwhile consistently relevant for all obligations arising from the sales agreement.