Oberster Gerichtshof, Urteil vom 28/07/2010 9 Ob 90/09i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:RS0126094
Date: 2010-07-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0728(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant brought an action in Austria for payment of a promised prize against a mail order company which had its seat in Germany. The defendant challenged the international jurisdiction of the court seised. After conclusion of oral hearings at first instance, insolvency proceedings were opened against the assets of the sued company and an insolvency administrator was appointed over the defendant. The court of first instance held that it had jurisdiction and granted the action. The defendant lodged an appeal. This was granted. Thereupon, the claimant lodged an appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof (AT) dismisses the appeal. The ECJ stated in the matter C-180/06 - Ilsinger regarding the application of Article 15(1)(c) Brussels I Regulation to actions in connection with isolated promises of prizes: "such legal proceedings are (...) covered by Article 15(1)(c) (...) on condition that the professional vendor has undertaken in law to pay that prize to the consumer; where that condition has not been fulfilled, such proceedings are covered by Article 15(1)(c) (...) only if the consumer has in fact placed an order with that professional vendor." While a synallagmatic contract is not required, a declaration of intent which only requires the acceptance of the consumer in order to form a contract must be clearly made. In this regard, the proceedings at first instance are defective for the reason that an application by the defendant to submit evidence to the effect that the claimant did not make a valid order was not granted, despite the fact that required contractual element could only have been found therein.