Oberster Gerichtshof, Beschluss vom 04/08/2009 9 ObA 52/08z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:009OBA00052.08Z.0804.000
Date: 2009-08-04
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0804(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, was employed as a hotel director by the defendant company with its seat in Germany on a cruise ship flying a German flag. Each seven day cruise went through Germany, Austria, Hungary and Slovakia. Departure and arrival each Saturday was in Passau (DE). The ship docked in several cities during the cruise (Budapest, Bratislava etc.), such that passengers could go ashore. In Vienna (AT) it only docked on the return journey, namely from Wednesdays at 8pm until departure on Thursday at 11pm. The plaintiff bases the international jurisdiction of the courts in Vienna for an action arising out of the contract of employment on the fact that he habitually or overwhelmingly carried out his work in Vienna. The court of first instance dismissed the case due to lack of international jurisdiction. The plaintiff then lodged an appeal to the Austrian OGH.
The OGH comes to the conclusion that Vienna was not the "habitual place of employment" within the meaning of Article 19(2)(a) Brussels I Regulation. In principle, the entire duration of the employment relationship must be taken into account in determining the place at which the concerned party habitually carried out his work in terms of the mentioned provision. Absent other criteria it constitutes the place where the employee carried out the majority of his work. Applying these principles, it cannot be assumed that the plaintiff's usual place of work was in Vienna, where the plaintiff only stayed for a little more than one day. It cannot be maintained that the "focus" of the work was in Vienna.