Oberster Gerichtshof, Beschluss vom 06/11/2008 6 Ob 192/08s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:RS0124352
Date: 2008-11-06
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT1106(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is domiciled in Austria, and the defendant is a commercial shipping company based in Germany. The plaintiff booked a "cargo ship voyage" from Trieste to East Asia. The trip was booked through a German company, who offered international cargo ship voyages on its website which was directed, inter alia, at the Austrian market. The plaintiff claimed that the depicted travel experience and the promised level of comfort stated on the website did not correspond with the reality, and thus he decided not to go on the the holiday. He brought an action before the competent Austrian court at his domicile for return of the purchase price. The defendant challenged the international jurisdiction of the court. The court accepted that there was a consumer contract and confirmed its own jurisdiction and competence under the first paragraph of Article 16 Brussels I Regulation, but the appeal court dismissed the claim for lack of jurisdiction. The plaintiff appealed to the OGH (AT).
The OGH adjourned the proceedings and referred the following to the ECJ for preliminary ruling: In order to determine whether the jurisdiction rules are to be applied in matters of consumer contracts, it must be clarified whether the cargo ship voyage booked by the plaintiff is an all inclusive package tour within the meaning of Article 15 (3) Brussels I Regulation or whether it is simply a form of passenger transport or conveyance which does not fall under the consumer agreements. If it is considered to be an all-inclusive package holiday, the question remains as to whether the conditions of Article 15 (1) are present and satisfied. The internet site, through which the cruise was first brought to the attention of the plaintiff, was not an active site through which a consumer could conclude a contract. Most importantly, the internet site did not belong to the defendant, but the agent. Whether these facts are sufficient to constitute a consumer contract is for the ECJ to determine.