Oberster Gerichtshof; 2014-11-18; Ing. K. T.; P.; 5 Ob 183/14v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0050OB00183.14V.1118.000
Date: 2014-11-18
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT1118(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian natural person (the “plaintiff”) sought improvement costs, price reduction and compensation from a company based in France (the “defendant”). According to the purchase agreement, the plaintiff bought a motor yacht from the defendant. One half of the purchase price was paid in instalments and the other half was financed through a leasing company.
The plaintiff based the jurisdiction of the Court of First Instance on Article 16 of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”), in the version valid until 09.01.2015. The plaintiff bought the yacht for private purposes and was a consumer; therefore, in the sense of the Brussels I Regulation, he could sue in Austria. The defendant has not entered an appearance.
The Court of First Instance dismissed the motion due to lack of international jurisdiction.
The Court of Appeal (Oberlandesgericht Wien) did not follow the plaintiff’s appeal and precluded an appeal on points of law. It had the same legal opinion as the first court - lack of international jurisdiction. Furthermore, it denied the existence of a purchase on instalment credit terms within the meaning of Article 15(1)(a) of the Brussels I Regulation because the plaintiff paid the whole purchase price before the yacht’s handover.
By an extraordinary appeal on points of law, the plaintiff sought to correct the decision of the Court of Appeal in the Oberster Gerichtshof (“OGH”).
In the appeal on points of law, the plaintiff had incorrectly argued that he had no way to clarify the details to the claim of international jurisdiction. This alleged lack of the procedure in the Court of First Instance, which was denied by the Court of Appeal, cannot be asserted in the appeal on points of law.
Further, the plaintiff argues that the defendant met the requirements of Article 15(1)(a) of the Brussels I Regulation by her appearance in the internet. The defendant had aligned her activities as trader on the consumer’s Member State of residence. In several decisions, the Court of Justice of the European Union (“CJEU”) has defined the clues for the alignment of activities presented in the Internet to another Member State (see C-585/08). This includes for example: international character of the activity, directions to the office from another Member State, use of other languages or currency and details of phone numbers with international codes.
These clues must be considered always in connection with this particular case. In the proceedings before the Court of First Instance, the plaintiff has not proved that the defendant had aligned its activities in Austria.
The plaintiff's legal opinion that there was a purchase on instalment credit terms in accordance with Article 15(1)(a) of the Brussels I Regulation is wrong. According to the CJEU’s case law, a purchase on instalment credit terms exists if the seller has transferred the ownership to the good in question to the buyer before the buyer has paid the full purchase price. The plaintiff paid the last part of the purchase price before he acquired ownership of the motor yacht.
The OGH dismissed the plaintiff’s extraordinary appeal on points of law as unfounded.