Oberster Gerichtshof, Urteil vom 10/09/1998 6 Ob 216/98b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0110633
Date: 1998-09-10
Subject matter: Lugano Convention
Origin: Austria

81998AT0910(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, domiciled in Germany, engaged the Austrian plaintiff to perform extensive catering services for ca. 500 people at a ski race in Kitzbühel (AT). After the defendant cancelled the catering, the plaintiff sued for damages arising from unjustified termination of contract before the Landesgericht of Innsbruck (AT). The plaintiff referred to Article 5(1) Lugano Convention to ground international jurisdiction. The plaintiff claimed that Kitzbühel was agreed as the place of performance, which also arose from the nature of the contracted catering services. The defendant claimed that the Austrian court did not have jurisdiction. The Landesgericht of Innsbruck held that it did not have jurisdiction. The plaintiff lodged an appeal on a point of law to the OGH (AT) after the OLG of Innsbruck upheld the first instance decision.
The OGH upholds the decisions of the prior instance courts. International jurisdiction is to be determined according to the Lugano Convention. However, the jurisdiction of the Austrian courts cannot be founded under this Convention. In particular, jurisdiction at the contractual place of performance pursuant to Article 5(1) Lugano Convention does not arise. According to the established jurisprudence of the ECJ, the place of performance is determined by the law applicable to the contentious obligation according to the conflict of laws rules of the lex fori. This is Austrian law in this case, according to which the place of performance of money debts is at the seat of the debtor. Regarding the further question of whether the particular circumstances of the case could mean that it could be assumed that the parties had reached an alternative agreement, the decision of the prior instance courts cannot be criticised. They had held that regarding catering for a large event, it could not be assumed, in regards to a deviation from default legal provisions, that payment of the agreed price would be performed in cash on location.