Oberster Gerichtshof, Beschluß vom 23/02/2005 9 Ob 2/05t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0090OB00002.05T.0223.000
Date: 2005-02-23
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82005AT0223(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff brought an action for damages before an Austrian court against the defendant, having its seat in another Member State. The parties were in a contractual relationship. The plaintiff alleged that the defendant had used a mistake made by the plaintiff during the performance of the contract
in a tortuous way and thus had caused damages. It was clarified in the lower courts that the jurisdiction of the Austrian court could neither be based on a prorogation of jurisdiction nor on the contractual forum according to Article 5(1) Brussels I Regulation. In order to establish the jurisdiction of the Austrian court, the plaintiff thus merely relies on the forum for tort, delict, or quasi-delict according to Article 5(3) Brussels I Regulation. She argues that the damage occurred within the district of the court seised. The lower courts dismissed the claim for lack of international jurisdiction. The plaintiff appealed before the OGH (AT).
The OGH (AT) dismisses the appeal. The concept of "tort, delict, or quasi-delict" in Article 5(3) Brussels I Regulation has to be interpreted in an autonomous way. Thereby, the relationship with the contractual forum according to Article 5(1) Brussels I Regulation has to be determined pursuant to the ECJ's jurisprudence in such a way that Article 5(3) only applies where a liability for damages is claimed which is not connected to a contract. However, where a claim for damages has such a close connection to a contractual relationship that the contractual element is in the foreground, only the forum for contractual relationships according to Article 5(1) Brussels I Regulation is relevant, even if the completion of an actus reus is invoked. That is the case in the matter at hand. Thus, the action for damages cannot be brought in the forum for tort, delcit, or quasi-delict according to Article 5(3) Brussels I Regulation.