Oberster Gerichtshof, Beschluß vom 29/08/2000 1 Ob 149/00v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0114192
Date: 2000-08-29
Subject matter: Lugano Convention
Origin: Austria

82000AT0829(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, seated in Austria, seeks before an Austrian court, damages from the defendant company, domiciled in Italy, due to the supply of defective roof tiles. According to the plaintiff, the distribution agreement contained a jurisdiction clause in favour of Austrian courts. The defendant objects, stating that the clause was subsequently inserted in the contract without its knowledge and will. The court of first instance held that it lacked jurisdiction, as the existence of an effective jurisdiction clause, according to Article 17(1) Brussels Convention, could not be proven. The court of appeal affirmed the judgment.
The OGH (AT) holds that according to Article 17 Lugano Convention, the parties must have actually assented to a clause which deviates from the general jurisdiction rules. Such an assent must be expressed in a clear and obvious way. This has to be proven by the party, which invokes the jurisdiction clause. Since the plaintiff’s proof has not been established, the Austrian courts are not competent.