Oberster Gerichtshof, Urteil vom 28/02/2003 7 Nc 4/03b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:0070NC00004.03B.0228.000
Date: 2003-02-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82003AT0228(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, chartered a boat, against payment of a deposit of 2.390_- Euro, from the defendant, having its seat in Germany, which the latter had advertised in a magazine sold in Austria. According to the agreement, the boat was to be taken over on 8 July 2002. However, contrary to the agreement, the plaintiff was unable to take it over. As the sailing cruise was no longer possible, the plaintiff rescinded from the agreement by fax of 10 July 2002 and commenced proceedings before the Austrian courts seeking repayment of the deposit from the defendant. He asserted that the courts had jurisdiction according to Articles 13, 14 Lugano Convention. In the first hearing, the defendant challenged the functional as well as the local jurisdiction of the Austrian courts asserting that the agreement had been signed in Vietnam. Thereupon, the Austrian court declined local jurisdiction. The plaintiff applied to the OGH (AT) for a declaration that the Bezirksgericht of Leoben (AT) had local jurisdiction.
The OGH (AT) dismisses the plaintiff's application for a so-called "ordination", i.e. the determination of the court having local jurisdiction, for being unfounded. The court holds that in the present case, the Brussels Convention applies, not the Lugano Convention. Jurisdiction over contracts which the plaintiff concluded as consumer for purposes outside his trade or profession is determined according to Article 15(1) (c) Brussels I Regulation. The defendant makes advertisements in Austria by way of a advertising magazine which is distributed in that Member State. This constitutes a cross-border activity within his trade or profession. Different from Article 14(1) Lugano Convention, Article 16 Brussels I Regulation contains a reference to the "courts for the place where the consumer is domiciled" and thus, also regulates local jurisdiction. Consequently, the application for an ordination is no longer necessary.