Oberster Gerichtshof, Urteil vom 28/06/2000 7 Ob 132/00p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0114007
Date: 2000-06-28
Subject matter: Lugano Convention
Origin: Austria

82000AT0628(05)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria claims payment of damages from the defendant domiciled in Belgium. The plaintiff had acquired from a licensed dealer, a product manufactured by the defendant, which did not correspond to the requisites displayed. The clients with whom the plaintiff had used the product had therefore brought forward claims against the latter. According to the plaintiff, the Austrian court has jurisdiction according to Article 5(3) Lugano Convention. The court of first instance affirmed its jurisdiction thereto, whilst the court of appeal rejected it.
The OGH (AT) holds on the one hand that no jurisdiction results from Article 5(1) Lugano Convention, since there lacks a voluntary obligation of the defendant manufacturer towards the purchaser plaintiff, as the manufacturer was not the vendor. On the other hand, in general the damages suffered on the basis of defective goods fall within the jurisdiction for delict or tort according to Article 5(3) Lugano Convention, but in this case the plaintiff only argues a mere financial damage which is not based on the violation of its utterly protected rights. Such damages are not covered by product liability. As regards claims falling outside product liability, the subsequent purchaser of a defective product cannot vis-à-vis the manufacturer who is not the vendor, base himself on Article 5(3) Lugano Convention. Thus a jurisdiction in Austria is not at hand.