OGH; 2021-11-29; 8 Ob 71/21f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2021:0080OB00071.21F.1129.000
Date: 2021-11-29
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82021AT1129(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Austria (hereinafter ‘the plaintiff’) filed an action against a company domiciled in Switzerland (hereinafter ‘the defendant’) demanding to be paid back the amount which the plaintiff paid to the defendant for discount vouchers.
The defendant operated a business system with discount vouchers. The defendant’s business model regarding the discount vouchers could be summarised in that by acquiring the discount vouchers, the plaintiff as a marketer participated in the regular distribution of ‘shopping points’ which in turn could later be exchanged for money. The parties chose Switzerland to be the exclusive forum.
The Bezirksgericht für Handelssachen Wien (hereinafter ‘the Court of First Instance’) seised under Article 15(1)(c) in connection with Article 16(1) of the new Lugano Convention upheld the action. The plaintiff registered himself on the platform of the defendant for investment purposes and invested money in discount vouchers. Therefore, the plaintiff was to be seen as consumer.
Based on the appeal of the defendant, the Handelsgericht Wien (hereinafter ‘the Court of Appeal’) annulled the decision of the Court of First Instance citing the lack of domestic jurisdiction and dismissed the action. In its opinion, the plaintiff, as a marketer, carried out a business activity and was entitled to receive remuneration. In addition, the plaintiff tried to recruit other persons for this activity. The plaintiff could not therefore be seen as a consumer under Article 15(1) of the new Lugano Convention.
The revision filed by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found admissible and justified.
The term ‘consumer’ is to be interpreted in close connection with the nature and purpose of the agreement. It relates solely to contracts which serve to cover own needs and which have no connection to a professional or business activity or under which the professional or business aspect only plays an inconsiderable role. The burden of proof lies with the person relying on the consumer nature of the agreement.
According to the Supreme Court, the Court of Appeal ignored the substantive purpose of the agreement made between the plaintiff and the defendant.
The defendant must have gained the impression upon the purchase of the discount vouchers that by buying the discount vouchers, the sole intention of the plaintiff was merely to achieve a passive income and not to use the discount vouchers for marketing activities as mentioned as an example by the defendant in its additional terms and conditions under 2.2. The defendant must have assumed that the authorisation to act as a broker played only a significant role for the plaintiff within their legal relationship.
The Supreme Court annulled the resolution of the Court of Appeal and referred the case back to the Court of Appeal for a new decision which would take the existence of domestic jurisdiction into account.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.