Oberster Gerichtshof, Beschluß vom 13/11/2007 4 Ob 165/07d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0040OB00165.07D.1113.001
Date: 2007-11-13
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT1113(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A licence agreement was concluded between the plaintiffs, an Austrian foundation for the administration of the artistic estate of a famous singer and the owner of an Austrian sound studio, and the German defendant. According to this agreement, the latter was authorised to distribute video recordings of a concert by the artist in various countries. The plaintiffs commenced proceedings before the Handelsgericht of Vienna (AT) seeking payment of royalties. They alleged that the court had international jurisdiction according to Article 5(1) Brussels I Regulation. On appeal, the action was dismissed for lack of international jurisdiction. It was held that a licence agreement was not an agreement for the performance of services within the meaning of Article 5(1) (b) Brussels I Regulation. Thus, Article 5(1) (a) Brussels I Regulation had to be considered. According to German law, as well as according to Austrian law, the claim for royalties in dispute has to be fulfilled at the seat of the debtor, i.e. the defendant's seat in Germany.
The OGH (AT), to which the plaintiffs appealed, stays the proceedings before it and refers several questions to the ECJ for a preliminary ruling. The first question of the OGH is whether a licence agreement constitutes a service agreement within the meaning of Article 5(1) (b) Brussels I Regulation. If this question is answered in the affirmative, the court further asks which place constitutes the place of performance and insofar considers, inter alia, the place where the licensor has his seat, or alternatively, the place where the licence is used. In case that a licence agreement cannot be qualified as an agreement for the performance of services, the OGH lastly states the question whether the Tessili rule shall be applied for the required determination of the contractual place of performance according to Article 5(1) (a) Brussels Convention as has been done in the past.