Oberster Gerichtshof, Urteil vom 18/12/2002 3 Nd 509/02
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0117232
Date: 2002-12-18
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82002AT1218(53)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff association brought an action before the Austrian courts claiming assigned rights arising from an unpaid prize notification sent to a consumer, which was conditional on the order of goods. In December 1999 it applied to the OGH (AT) for a determination of the Austrian court having local jurisdiction. The OGH stayed the proceedings until the preliminary proceedings before the ECJ ended in July 2002. Later, the defendant proposed new preliminary proceedings holding that it was unclear whether the application for determination of the court having local jurisdiction (application for ordination) according to Para. 28 of the Austrian code constituted an “action” within the meaning of Article 66 (1) Brussels I Regulation. In such case the Brussels Convention would apply instead of the Brussels I Regulation.
The OGH (AT) holds that in the case where a complete claim is joined to the application, there is no doubt that the action, according to Article 66 Brussels I Regulation, was already raised with the filing of the application for an "ordination". Despite its restrictive preamble, Article 30 Brussels I Regulation shall also be applied to the interpretation of  Article 66. Thus, the claim submitted with the application for an "ordination" should be considered the document instituting the proceedings. Thus, the action can be considered introduced according to Article 66 unless the plaintiff failed to take the measures in order to effect service on the defendant. Thus, in the present case the Brussels Convention applies. Due to the close connection between the prize notification and the order of goods, a contractual claim within the meaning of Article 5(1) exists. According to Article 57(1) CISG, the place of performance of the obligation to pay the purchase price is the seat of the seller. This rule also applies analogously to other claims for payment. Thus, the place of performance is the seat of the creditor, in this case, in Austria.