Oberster Gerichtshof, Beschluß vom 15/10/1996 4 Nd 513/96
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1996:RS0106680
Date: 1996-10-15
Subject matter: Lugano Convention
Origin: Austria

81996AT1015(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is domiciled in Austria. He brought an action before the Handelsgericht of Vienna (AT) against the defendant, having its seat in Italy, seeking refund of two down payments he had made on a motorboat. He asserted that the defendant had offered him the boat, which was specified in the statement of claim, through its agency in Austria. Before the contract was concluded, the defendant had submitted a draft agreement to him in Austria. Furthermore, the boat was intended to be used for private purposes by him and his family. Thus, the matter related to a consumer contract, over which the Handelsgericht of Vienna had jurisdiction according to Article 14 Lugano Convention. The court dismissed the action holding that Article 14 Lugano Convention only regulated international jurisdiction, not however local jurisdiction and that the action was inadmissible for lack of local jurisdiction. The plaintiff applied to the OGH (AT) for a determination of the court having local jurisdiction ("ordination").
The OGH (AT) allows the application. It holds that according to the submissions of the plaintiff, it can be assumed that the matter relates to a consumer contract according to Article 13(1) (3) Lugano Convention, i.e. a purchase of a good which was preceded by an offer in the Member State of the consumer's domicile. The court also finds that the consumer performed the legal acts necessary for the conclusion of the contract in this State. Nevertheless, the Handelsgericht of Vienna had been right in holding that Article 14, which states in general that the "courts" of the State of domicile of the consumer shall have jurisdiction without mentioning any specific courts, does not regulate local jurisdiction. Insofar, domestic law of civil procedure has to be applied. As the latter does not provide a court having local jurisdiction over an action against a party having its seat in Italy, that court has to be determined by way of an ordination.