Oberster Gerichtshof, Urteil vom 03/02/2000 2 Ob 251/98w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:0020OB00251.98W.0203.000
Date: 2000-02-03
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82000AT0203(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiffs, companies domiciled in Austria request from the defendant, a company domiciled in Germany, the take over of existing obligations, the transfer of its own shares to them and the take over of the broadcast activity of the first plaintiff company in return for a participation of the defendant in the first plaintiff company. The plaintiffs have justified the jurisdiction of the Austrian court seised by the fact that the obligations requested had to be performed there. The court of first instance rejected its jurisdiction; this was confirmed by the court of appeal.
The OGH (AT) finds on the one hand that the jurisdiction at the place of performance according to Article 5(1) Brussels Convention is at hand even where it is disputed if a contract was actually concluded. In this case, the place of performance shall be determined based on the provisional hypothesis that the contract was validly concluded. In this regard for each individual claim, the place of performance shall be established independently. In this case, the contract must be determined according to Austrian law. According to this law, the obligation of exemption, as well as the transfer of the shares are to be performed at the seat of the debtor, here the defendant. The obligation to take over the broadcasting activity cannot however be finally determined for factual reasons. In this regard the court of first instance shall make the necessary assessments.