Oberster Gerichtshof; 2015-04-28; D.; M.; 5 Ob 18/15f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2015:0050OB00018.15F.0428.000
Date: 2015-04-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82015AT0428(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian natural person (the “plaintiff”) sought compensation for personal suffering from an independent hairdresser based in Hungary (the “defendant”). The defendant, who performed her services in a thermal bath in Hungary, had carried out the plaintiff's permanent wave treatment incorrectly.
The plaintiff based the court's international jurisdiction on Article 15(1)(c) of the Brussels I Regulation (1).
The defendant argued that the court lacked international competence. She did neither her business in Austria nor did she direct her business activity in Austria.
The Court of First Instance (Bezirksgericht Leibnitz) dismissed the suit for lack of jurisdiction. The mentioning of the defendant's services in German language and the phone number with an international code itself on the thermal bath's website, which is operated by a third party, is not sufficient to effect directing of business activities in Austria within Article 15(1)(c) of Brussels I Regulation. The defendant had no influence on the thermal bath's website design.
The Court of Appeal (Landesgericht für Zivilrechtssachen Graz) did not follow the plaintiff's appeal. Although it seemed as if the defendant directed her business activities in Austria, it is necessary to consider further circumstances. The defendant did not act by herself or by a deliberately and voluntarily employed intermediary in such a way that the consumer (the plaintiff) must consider this activity to be directed in another Member State (Austria).
However, the appeal on points of law is admissible because there is no case law as to whether a third party's advertising, which the company concerned cannot influence or prevent, is to be attributed to this company to be "directing" in the sense of Article 15(1)(c) of the Brussels I Regulation.
On the contrary, the Oberster Gerichtshof ("OGH") stated that the appeal on points of law is not admissible. If the decision depends on the solution of a question of law of the European Union, then the appeal on points of law is admissible only if the Court of Appeal made a serious misjudgement when it resolved this question, but this is not the case here.
The term "directing" of the activity does not have an exact definition and is always to be interpreted autonomously in reference to the specific case.
A third party's activities are to be attributed to the company (the defendant) if the advertising third party carries out promotional measures on behalf of the consumer's contractual partner who also makes a payment for them. The court is to check always whether these criteria have been met.
It is clear that the defendant did not have any influence on the content of the thermal bath's web page nor had she any possibility to reject this action. The Court of First Instance and the Court of Appeal have assessed this case correctly and there is no serious misjudgement by the Court of Appeal.
The OGH rejected the plaintiff's appeal on points of law as inadmissible.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in the version valid until 09.01.2015.