Oberster Gerichtshof, Urteil vom 08/01/2009 4 Nc 24/08d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0040NC00024.08D.0108.000
Date: 2009-01-08
Subject matter: Lugano Convention
Origin: Austria

82009AT0108(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant holds parental responsibility over two children and lives in Vienna (AT). She is self-employed. She sought to make a long-term investment of the proceeds from the sale of immovable property for the purposes of a pension and made contact with representatives of the respondent, which is resident in Switzerland and thus in another Contracting State to the Lugano Convention 1988. According to the statements of the applicant the pre-contractual negotiations took place in Austria, where she charged the respondent in Vienna with the asset management. The transactions executed by the respondent ended in the total lost of the principal sum. The applicant therefore sought to bring an action for damages against the respondent in the consumer forum of Article 14 Lugano Convention 1988. Since Article 14 only determines the international jurisdiction of the Austrian courts, she applied to the OGH (AT) for the determination of the locally competent court by way of a procedure called ordination.
The OGH examines whether a matter relating to a consumer contract within the meaning of Article 13 Lugano Convention 1988 is concerned. The term of consumer must be given an  autonomous meaning. The provisions of Article 13 et seqq. Lugano Convention 1988
protect end consumers who are not acting in the course of their trade or profession. The applicant acted as a consumer. The long-term investment of the proceeds from the sale of immovable property for purposes of a pension must clearly be attributed to her private sphere and not to her self-employed activity. According to her statements, the conclusion of the contract was preceded by an express offer of the respondent in Austria. Thus, the Austrian courts have jurisdiction over the matter pursuant to Article 14 Lugano Convention 1988. Since the applicant lives in Vienna, the OGH specifies the Handelsgericht of Vienna as the locally competent court.