Oberster Gerichtshof, Urteil vom 01/02/2000 4 Ob 10/00z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:0040OB00010.00Z.0201.000
Date: 2000-02-01
Subject matter: Lugano Convention
Origin: Austria

82000AT0201(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff having its seat in Austria sued the defendant having its seat in Germany in an Austrian court for payment of the price for the manpower supplied under a contract on a building site of the defendant in Vienna (AT). The plaintiff holds that Wels (AT) was agreed to be the competent court as well as the place of performance. The defendant had first requested specialised workforce by way of a written request which was entitled “order”. The plaintiff sent a “confirmation order” to the defendant, in which it mentioned the respective costs. It included a note: “payable and actionable in Wels”. The defendant challenged the international jurisdiction of the Austrian court.
The OGH (AT) considers that jurisdiction results from Article 5(1) Lugano Convention, which is based on the legal or agreed place of performance. The place of performance is to be determined in accordance with the law governing the obligation in question according to the conflict of law rules of the court seised. The content of the first letter of the defendant is so vague that it shall only be considered as an invitation to make an offer. Accordingly, the answer of the plaintiff is in fact an offer in spite of its appellation “order confirmation”. The defendant did not remain silent on this matter but has requested, by reference to the offer, the services to be provided at a certain date. This constitutes the issue of a declaration whereby a contract was concluded, which content covered the entire offer (and therefore also the place of performance in Wels). The Austrian courts are thus competent according to Article 5(1) Lugano Convention.