Oberster Gerichtshof, Beschluß vom 25/02/1998 # 9 Ob 246/97k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:0090OB00246.97K.0225.000
Date: 1998-02-25
Based on: Provisional data
Subject matter: Lugano Convention
Origin: Austria

81998AT0225(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, sought payment of fees from the defendant, domiciled in Germany. He therefore applied for a payment order against the defendant. The defendant made a timely objection to the payment order which had been served on her. In her statement of objection, the defendant disputed the claim and contended that she had not instructed the plaintiff. The plaintiff seised the Bezirksgericht of Innsbruck (AT) which appointed a hearing date. In her preparatory pleading, the defendant challenged the jurisdiction of the court and again disputed the claim. The court held that it lacked jurisdiction and dismissed the action. On the appeal of the plaintiff, the OLG of Innsbruck (AT) overruled that judgment. It held that the defendant had entered an appearance without challenging jurisdiction according to Article 18 Lugano Convention, and had only objected to the payment order by way of a plea on the merits. The defendant appealed to the OGH (AT).
The OGH (AT) allows the appeal. It holds that with regard to Article 18 Lugano Convention, it is agreed that the time until which the defendant can challenge jurisdiction is determined according to the procedural law of the forum State. According to Austrian procedural law, jurisdiction can still be challenged in the preparatory pleading submitted for the hearing, even where the hearing was preceded by the order for payment procedure. Thus, it is irrelevant that the objection to the payment order was only based on a plea on the merits. Accordingly, the court of first instance was correct in holding that jurisdiction had not been established by the defendant entering an appearance without challenging jurisdiction. Jurisdiction cannot be based on Article 5(1) Lugano Convention either, as according to the applicable Austrian law, the place of performance of the plaintiff's claim for payment of fees is situated at the seat of the debtor, i.e. in Germany.