Oberster Gerichtshof, Urteil vom 01/10/2008 6 Ob 176/08p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0060OB00176.08P.1001.000
Date: 2008-10-01
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT1001(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are in dispute about claims arising from a long term contractual relationship regarding the sale of merchandise. The plaintiff, having its seat in Austria, purchased goods from the Italian defendant. The goods were accepted by a carrier, which was assigned and paid by the plaintiff, at the seat of the defendant and transported to the plaintiff in Austria. The plaintiff commenced proceedings before the court at its seat asserting claims arising from the sales agreement. It based international jurisdiction on a jurisdiction clause which, according to the findings of the lower courts, was printed in German language in fine print on its business stationary which it had used to indicate its bank account. Furthermore, the plaintiff relied on Article 5(1) (b) Brussels I Regulation and claimed that the contractual place of performance of the deliveries of the goods was at its seat in Austria. The appellate court dismissed the action for lack of international jurisdiction. The plaintiff appealed.
The OGH (AT) dismisses the appeal. It holds that there is no jurisdiction agreement which conforms with any of the forms provided by Article 23 Brussels I Regulation. The plaintiff cannot rely on a practice within the meaning of Article 23(1) (b). A clause printed on the business stationary of one of the parties in a language that the other party does not understand is not apt in order to establish such jurisdiction. The place of delivery within the meaning of Article 5(1) Brussels I Regulation has to be determined according to factual criteria. The circumstances of the individual case are relevant. The appellate court's conclusion from the acceptance of the goods at the defendant's seat by a carrier which was assigned and paid by the plaintiff, that the goods definitively came into the plaintiff's sphere at that place, can be upheld. Thus, from the court's point of view the appellate court was right in dismissing the action.