Oberster Gerichtshof, Urteil vom 21/11/2001 3 Ob 168/00b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:0030OB00168.00B.1121.000
Date: 2001-11-21
Subject matter: Lugano Convention
Origin: Austria

82001AT1121(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is the liquidator of an Austrian company. He brought a recourse claim against the defendant domiciled in Germany, since the latter had as sales representative sold goods of the bankrupt debtor without its consent and without informing it and had redirected the purchase price on his private account. The liquidator states that, since this unauthorised action took place in Austria, pursuant to Article 5(3) Lugano Convention, the courts of this place have jurisdiction. The court of first instance declared itself incompetent because there is a connection with the defendant’s activity as sales representative. The court of appeal affirmed this and dismissed a right to choose the jurisdiction on the ground of the likewise presence of a tortuous breach of protective law.
The OGH (AT) emphasises that the defendant, when the harm occurred, issued invoices as sales representative and has thus misused this position in order to redirect the payment on his private account. Therefore the claim is not only based on tort, but results from the contractual relationship (within the meaning of Article 5(1) Lugano Convention) of the principals. Therefore the jurisdiction of the unauthorised action according to Article 5(3) Brussels Convention is not at hand.