Oberster Gerichtshof, Urteil vom 03/08/2004 5 Ob 32/04y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0050OB00032.04Y.0803.000
Date: 2004-08-03
Subject matter: Lugano Convention
Origin: Austria

82004AT0803(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff commenced proceedings against a company, having its seat in Poland, before the court at her domicile in Austria seeking payment of the purchase price. In order to establish jurisdiction, she invoked a written jurisdiction agreement according to Article 17(1) Lugano Convention. In the alternative, she relied on Article 5 Lugano Convention. The defendant however asserted that the original jurisdiction agreement had been altered by a later agreement. The court of first instance failed to examine the conclusion of the second agreement, as it held that it had jurisdiction according to Article 5 Lugano Convention.
The OGH (AT) holds that a jurisdiction agreement according to Article 17 Lugano Convention leads to an exclusive jurisdiction of the court which, inter alia, supersedes the special jurisdiction according to Article 5 Lugano Convention. The assensio mentium between the parties which is indispensable for the conclusion of a jurisdiction agreement according to Article 17 Lugano Convention, has to be proved by the party who invokes the clause conferring jurisdiction. The court seised with the action thus has to examine whether the clause establishing its jurisdiction actually was subject to a consent between the parties, which was clearly and manifestly expressed.