Oberster Gerichtshof, Urteil vom 17/11/2004 9 ObA 78/04t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:009OBA00078.04T.1117.000
Date: 2004-11-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT1117(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, entered into an agency contract with the defendant company, having its seat in Germany, in which jurisdiction was conferred on the courts of the defendant’s seat in Cologne (DE). The plaintiff nevertheless raised his claim for payment of commission and for compensation in Austria, alleging that as an employee who was personally and economically dependent on the defendant, he could not effectively negotiate an agreement on jurisdiction. The court of first instance agreed, while the court of appeal denied the existence of an employment contract for the purpose of Article 18 Brussels I Regulation and declared that it had no jurisdiction.
The OGH (AT) affirms the decision by pointing out that for the interpretation of the term "employment contract" in Article 18 Brussels I Regulation one can resort to the jurisprudence on Article 5(1) Brussels Convention or Lugano Convention, which correspond exactly to the said rule. Accordingly, an employment contract exists, where someone for a certain period of time performs services for compensation for another under his/her control, whereby he/she is brought to some extent within the organisational framework. Mere occasional performance of services under the control of the employer, as here between the plaintiff and the defendant, is not sufficient, as far as they are less important than those which have been performed independently. A mere economic dependency does not create an employment contract. Therefore, the agreement on jurisdiction is valid.