Oberster Gerichtshof, Beschluss vom 08/05/2008 6 Ob 63/08w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0060OB00063.08W.0508.000
Date: 2008-05-08
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0508(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff was the commercial representative of the defendant company, having its seat in Germany, for the sale of prefabricated homes. The agency relationship was terminated. The plaintiff commenced proceedings against the defendant before the courts of Vienna (AT) seeking payment of a commission for the sale of a prefabricated home. The defendant challenged the international jurisdiction of the Austrian courts. The court of first instance found that the defendant operated a representative sales office at the "Blue Lagoon" in the Austrian place Vösendorf, where various prefabricated home models were situated. There, the defendant had assigned a desk to the plaintiff, from where the latter performed his activities as representative. These activities involved, above all, the procurement of sales contracts concerning prefabricated homes which would be built in Vienna. The lower courts dismissed the action on the ground that the courts in Vösendorf had local jurisdiction, instead of the courts in Vienna. The plaintiff appealed to the OGH (AT).
The OGH (AT) affirms the decision by the lower courts. It holds that jurisdiction has to be determined according to Article 5(1) (b) Brussels I Regulation. The concept of service has to be broadly interpreted. It also encompasses an agency agreement. In the absence of an alternative agreement of the parties, the place of performance of the obligation in question is situated at the place where the plaintiff actually performed his activities as representative. This determination has to be made according to factual criteria, instead of legal criteria. The place where the plaintiff engaged in business, was the defendant's "Blue Lagoon" in Vösendorf, where the plaintiff was assigned a desk where he performed his work. The fact that the plaintiff was away on business with clients in various places is therefore irrelevant.