Oberster Gerichtshof, Urteil vom 03/05/2007 1 Ob 74/07z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0010OB00074.07Z.0503.000
Date: 2007-05-03
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT0503(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, an Austrian company, brought an action for liability against the defendant as falsus procurator. It asserted that the defendant had ordered goods from it in the name of a German general partnership (OHG) alleging that he was a personally liable partner of the latter and that he had the power to conduct business. Instead, it turned out that the alleged partnership did not exist. The claimant stated that being a falsus procurator, the defendant is obliged to compensate the claimant for its interest in performance and thus, for a sum in the amount of the unpaid purchase price. It assumed that international jurisdiction of the Austrian courts was based on Article 5(3) Brussels I Regulation. The appellate court dismissed the action for lack of jurisdiction of the Austrian courts. The claimant appealed to the OGH (AT).
The OGH (AT) allows the appeal and remands the case to the appellate court for a new hearing. It firstly states that the jurisdiction of the court at the place of performance of the obligation in question is not applicable as the defendant alleged that he was acting in the name of a company and thus, for his part, did not assume any contractual obligations. According to the ECJ's judgment of 19.09.2002 - 334/00 - in Tacconi, where a contractual liability is lacking, the obligated party can be sued for liability in the forum provided for by Article 5(3) Brussels I Regulation. This applies in the case of a falsus procurator. The claimant's seat can be assumed to be the place where the event giving rise to liability occurred, as the defendant declared that he represented a - actually non-existing - general partnership in a telephone conversation which the manager of the claimant answered at the latter's seat. Thus, the Austrian courts at the claimant's seat have international jurisdiction over the case.