OGH; 2023-04-12; 5 Ob 36/23i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2023:0050OB00036.23I.0412.000
Date: 2023-04-12
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82023AT0412(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Austria (hereinafter ‘the plaintiff’) filed an action against a company domiciled in Switzerland (hereinafter ‘the defendant’) demanding to be paid back the amount which the plaintiff paid to the defendant for discount vouchers.
The defendant operated a business system with discount vouchers. The parties to the dispute made an agreement under which the plaintiff, as a marketer, obtained non-exclusive rights to distribute the vouchers for the defendant. A precondition for creating a remuneration entitlement was that the marketer had to conduct its business activities as an independent business entrepreneur, where he was also obliged to ensure the proper registration of the trade. The parties chose Switzerland to be the exclusive forum.
The Landesgericht Leoben (hereinafter ‘the Court of First Instance’) dismissed the action. Based on the appeal of the plaintiff, the Oberlandesgericht Graz (hereinafter ‘the Court of Appeal’) modified the decision of the Court of First Instance. It deemed the dispute to be of a consumer nature under Article 15(1)(c) of the new Lugano Convention (1), confirmed the international and local jurisdiction of the Court of First Instance and refused the defendant’s objection regarding a lack of local jurisdiction. The Court of Appeal permitted the ordinary revision regarding the defendant’s application as no case law of supreme courts existed regarding the question of whether the defendant could reasonably believe from the subsequent establishment and proof of a trade licence on the part of the plaintiff that upon the acceptance of the respective standard form agreements, the plaintiff intended to conclude the agreement with the intention to carry out a professional or business activity, thus not being a consumer.
The Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) found that contrary to the opinion of the   Court of Appeal, a revision was not permissible in the case.
The Supreme Court has dealt repeatedly with identical contractual situations (2). The dispute was of a consumer nature despite the fact the marketer promoted the defendant to other people. The defendant could not rely on the fiction of the business nature of the plaintiff as, in that case, specific provisions contained in the general terms and conditions could otherwise serve to circumvent the mandatory consumer protection. The defendant’s business model regarding the discount vouchers could be summarised in that the marketer only participated, by acquiring the discount vouchers, in the regular distribution of ‘shopping points’, which in turn could later be exchanged for money. Acquiring discount vouchers had to be seen as a form of investment as they were not bought with the intention to be used for marketing purposes.
The Supreme Court dismissed the revision of the defendant.
(1)  Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Resolution from 29th November 2021 no. 8 Ob 71/21f.