Oberster Gerichtshof, Urteil vom 21/01/2009 3 Ob 285/08w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0030OB00285.08W.0121.000
Date: 2009-01-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0121(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a commercial agent who previously lived in Germany. He concluded a commercial agency contract with a company with its seat in Germany. The contract contained a jurisdiction clause in favour of the courts in Munich (DE). Several years later, the defendant, a company with its seat in Austria, took over the place of the German company in the contractual relationship with the consent of all the parties. The plaintiff subsequently relocated to Austria. After a dispute arose between the parties, the plaintiff brought an action before the Landesgericht of Salzburg (AT), demanding a statement of account and payment from the defendant.
The defendant, referring to the jurisdiction clause, challenged the international jurisdiction of the court. The court dismissed the challenge due to lack of international jurisdiction. The defendant made an appeal on a point of law to the OGH (AT) after the OLG of Linz (AT) confirmed this decision.
The OGH dismisses the appeal and upholds the decision of the prior instance courts. It was not disputed by the plaintiff that the defendant had validly entered into the contractual relationship. The jurisdiction agreement contained in the contract is to be judged according to Article 23 Brussels I Regulation. A prerequisite for this is that the case was not merely a domestic one at the time at which the action was brought. This is not the case here. Firstly, the jurisdiction agreement, from the point of view of the Austrian forum, provided for the exclusive jurisdiction of a foreign court. Secondly, the jurisdiction agreement related to commercial agency contract which concerned the performance of agency services in another State, namely Germany. Thus, as a sufficient foreign connection exists, Article 23 Brussels I Regulation is applicable and the action must be dismissed due to lack of international jurisdiction.