Oberster Gerichtshof, Urteil vom 11/05/2005 9 Ob 104/04s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0119929
Date: 2005-05-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0511(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An Austrian construction company concluded a guarantee agreement with the plaintiff, an insurance company, in the context of a contract for performing construction work in Austria. According to the construction company, the plaintiff was to pay back a certain amount of the afforded remuneration, on demand, to the German client ordering the construction works. After the client demanded payment, the plaintiff paid. The plaintiff later brought a case before an Austrian court against the client for repayment of the amount paid. It claimed that the use of the guarantee was an abuse of legal rights. The reclamation of the amount was based specifically on unjust enrichment. In general, the guarantee principal is entitled to this claim, but however, as a result of the payment by the plaintiff, the claim has been subrogated to the later through cessio legis. The plaintiff based the competence of the court seised in particular on Article 5(1)(a) Brussels I Regulation.
The OGH (AT) affirms the international jurisdiction of the Austrian court according to Article 5(1) Brussels I Regulation. Pursuant to the changes to the forum of the place of performance through the Brussels I Regulation, secondary contractual claims, which include rescission claims based on unjust enrichment, may also be asserted at the place of performance. The place of performance is the place where the construction work, forming the subject-matter of the contract, was to be performed. This is situated in Austria. It is to be examined whether the assignee may also invoke this forum in the present case. The aim of the forum at the place of performance is not to give a personal preference to a party, but rather serves, inter alia for reasons of proof-proximity, to better implement the contractual claims. This forum thus adheres to the claim and not to the person of the plaintiff. Thus, the forum of Article 5(1) Brussels I Regulation is also open to the assignee.