Oberster Gerichtshof, Beschluß vom 24/02/1998 1 Ob 319/97m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0109739
Date: 1998-02-24
Subject matter: Lugano Convention
Origin: Austria

81998AT0224(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff delivered goods to a German company which became insolvent and failed to pay the goods. The plaintiff commenced proceedings before the Austrian court at its seat against the general manager of the insolvency debtor seeking damages. It alleged that the defendant had ordered the goods while he was already fully aware of the insolvency debtor's inability to pay and thus had certainty that the payment could not be performed. Furthermore, he allegedly sold the goods despite the retention of title agreed on and misused the proceeds. Thus, the plaintiff had lost its right to retention of title. The defendant, domiciled in Germany, challenged the international jurisdiction of the Austrian courts over the claim. The appellate court dismissed the challenge. The defendant appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that jurisdiction is determined according to the provisions of the Lugano Convention. According to Article 5(3) Lugano Convention, the courts of the place where the harmful event occurred as well as the courts of the place where the resulting damage was sustained have jurisdiction. The place where the resulting damage was sustained has to be determined in an autonomous way. Generally, the place where the resulting damage was sustained can also be the place where a reduction of assets of the injured party took place. However, this provision has to be interpreted in a restrictive way. Only the place where the damage resulting in the reduction of assets first occurred can be considered. Pursuant to the application of these standards, the deception by the purchaser of the plaintiff with regards to the ability to pay as well as the reduction of assets caused by the unjust resale of goods received under retention of title are apt to establish the jurisdiction of the courts at the plaintiff's seat according to Article 5(3) Lugano Convention.