Oberster Gerichtshof, Urteil vom 18/11/2003 1 Ob 63/03a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0118506
Date: 2003-11-18
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT1118(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff was running a hotel in Austria, in which the defendant, a tour operator, had reserved several rooms. The plaintiff sought the payment of cancellation fees from the defendant before an Austrian court, as the defendant had not cancelled the reservation in due time. According to the opinion of the courts of first and second instance, it could not be proven that an agreement conferring jurisdiction on the Austrian courts, contained in the plaintiff’s general terms and conditions, had been included in the reservation contract. The claim was therefore rejected.
The OGH (AT) confirms the rulings of the lower courts that there is no agreement conferring jurisdiction. However, it also holds that the special jurisdiction over the place of performance, established by Article 5(1) Brussels I Regulation, could be applicable. For purchase and service contracts, contrary to Article 5(1) Brussels Convention, a uniform forum applies at the place where the goods or the services are to be provided or should have been provided. Thus, all claims arising from such contracts may be brought at the place of performance of the characteristic obligation. A contract for accommodation in a hotel is, insofar as it exceeds the mere rent of the room, a service contract within the meaning of Article 5(1)(b) Brussels I Regulation, as, according to the Regulation, the term is to be interpreted autonomously and broadly. Thus all contracts which have as their subject matter a specific result in return for payment are covered, in contrast to a work contract, which deals only with simple performance. Also, the secondary claim for the payment of the cancellation fees may be brought in the place where the accommodation in the hotel was to take place, namely in Austria.