Oberster Gerichtshof, Urteil vom 14/09/2010 1 Ob 137/10v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:RS0126256
Date: 2010-09-14
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0914(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant sought payment for several deliveries of goods from the defendant, which had its seat in the Netherlands. It grounded Austrian jurisdiction on the basis that Bad Leonfelden (AT) had been the place of performance for the delivery of goods and also that this had been agreed upon. The defendant raised a jurisdictional challenge on the basis that neither a place of performance nor a forum in Austria had been agreed upon. The goods were delivered "free of charge" according to the contract. Thus, the place of performance was in the Netherlands. The first and second instance courts held that they lacked jurisdiction. The claimant lodged an appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof (AT) dismisses the appeal. There is no jurisdiction agreement in terms of Article 23 Brussels I Regulation. The clause of the terms and conditions which stated "place of performance is 4190 Bad Leonfelden. Austrian law is applicable" does not refer in any way to future disputes before court. The actual place of performance is in the Netherlands, since the claimant undertook to deliver the goods "free of charge", and they were delivered to, and received at, the seat of the defendant. The ECJ (C-381/08) answered the question of interpretation regarding the place of performance in the case of mail order as follows: Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction. Since in the present case a "real" place of performance for delivery of goods deviating from the actual place of delivery was not provided for, the seat of the defendant establishes jurisdiction under Article 5(1)(b) first indent Brussels I Regulation.