Oberster Gerichtshof, Beschluß vom 24/01/2008 2 Ob 192/07k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0020OB00192.07K.0124.000
Date: 2008-01-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0124(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
Both parties are building contractors. The Austrian defendant assigned the plaintiff, a German company, with certain works to be performed on a building project situated in Austria. The plaintiff seeks the payment of outstanding wages. It commenced proceedings before the Austrian court at the place where the building is situated. The defendant challenged the international jurisdiction of the court. It alleged that the parties had agreed on the jurisdiction of the courts at the plaintiff's seat in Germany. Allegedly, they had also agreed on the application of German law and of the German rules of Construction Contract Procedures (VOB/Part B) by signing a protocol in which reference was made to the latter. The VOB/Part B contained a jurisdiction clause. They were generally known and could be retrieved on the internet anytime. As the action was dismissed by the lower courts, the plaintiff appealed to the OGH (AT).
The OGH (AT) allows the appeal and remands the case to the court of first instance. According to the ECJ's jurisprudence, the prerequisites for a valid conclusion of a jurisdiction agreement laid down in Article 23 Brussels I Regulation have to be narrowly interpreted in an autonomous way. A valid jurisdiction agreement can only be concluded by reference to a general set of rules, such as a general agreement or general terms and conditions, where the set of rules is actually available to the parties at the time of the conclusion of the agreement. It is not sufficient that both parties had knowledge of the VOB/Part B and that the text is available on the internet. As the rules were not available to the parties, no valid jurisdiction agreement was concluded. The Austrian court at the place where the building, on which the plaintiff had to perform her work, is situated, has jurisdiction according to Article 5(1) (b) Brussels I Regulation. A works contract constitutes a contract for services within the meaning of this provision.