Oberster Gerichtshof, Urteil vom 04/05/2006 9 ObA 167/05g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:009OBA00167.05G.0504.000
Date: 2006-05-04
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82006AT0504(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, an Austrian commercial representative, brought an action before the Arbeits- und Sozialgericht of Vienna (AT) against an Italian company. The question arises whether he can be considered as an “employee” in the sense of Article 5(1) Brussels Convention as the plaintiff could independently manage his work.
The OGH of Vienna (AT) confirms the decision rendered by the court of appeal. It finds that the jurisdiction is determined according to Article 5(1) Brussels Convention, which corresponds to Article 5(1) Lugano Convention. The concept of employment agreement must be interpreted autonomously. Article 6 Rome Convention of 1980 provides an indication as regards the interpretation. Accordingly, protection shall be granted to the weaker party in unequal legal relationships between the parties. According to the jurisprudence of the ECJ, the essential characteristic of an employment agreement is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. Furthermore, employment agreements require a stable relationship, whereby the employee is regularly brought within the organisational framework of the employer’s business. There is then a personal bond. Economic dependence, as ascertained by the plaintiff, does not yet justify the existence of an employment agreement in the sense of the Brussels/Lugano Conventions. The plaintiff was not bound to the instructions since he could decide independently on his time and place of work and was not obliged to report.