Oberster Gerichtshof, Beschluß vom 28/09/2005 7 Ob 149/05w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0120198
Date: 2005-09-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0928(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant company, seated in Germany, delivered to the plaintiff, domiciled in Austria, sunglasses directly to its different customers as retailer. The plaintiff requested reimbursement of the goods given back according to the convention between the parties. According to the plaintiff, the jurisdiction at the seat of the plaintiff results from Article 5(1) (b) Brussels I Regulation. The court of first instance considered the seat of the plaintiff as the place of performance and asserted its jurisdiction. The court of appeal rejects this, on the ground that there are not one but many places of performance.
The OGH (AT) also applies Article 5(1) (b) Brussels I Regulation, however it cannot determine in this provision, whether the place of performance of partial deliveries, in accordance with the convention between the parties, at different places where the customers of the buyer are domiciled, is situated at the seat of the buyer. It is indeed questionable in this case, whether a uniform place of performance exists concerning all partial deliveries. Thus a question referred for a preliminary ruling is justified.