Oberster Gerichtshof, Beschluß vom 18/08/2004 4 Ob 149/04x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0119298
Date: 2004-08-18
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0818(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, entered into an option business with an investment company domiciled in Germany, in which a part of the capital used by him was lost. He raises a claim against the managing directors and investment consultants of the company, the defendants, likewise domiciled in Germany, for payment of damages, on the grounds that they had misrepresented to him that the business was risk free in order to obtain his money. According to the plaintiff, since his fortune was situated at his domicile in Austria, the damage occurred in Austria, and thus the local courts had jurisdiction. The court of first instance held itself incompetent, which was confirmed by the appellate court.
The OGH (AT) holds that the plaintiff’s claim is for payment of damages due to a tortuous action by the defendants, and thus Article 5(3) Brussels Convention is generally applicable. The question whether the damaging event did not occur at the place, where the asset account was held, here Germany, but already occurred at the domicile of the plaintiff, because he transferred the money from there following a request by the defendants on the telephone, was referred by the OGH to the ECJ. Subsequent to the ECJ’s decision on 10.6.2004 (C-168/02) the OGH answers the question in the negative, because the place of the centre of the fortune of the plaintiff at his domicile is not the place where the harmful event occurred for the purpose of Article 5(3) Brussels Convention, if the plaintiff (according to his statements) suffered a financial damage due to the loss of money transferred to an investment company in another Contracting State. Not the transfer of the money to the investment company is causal for the loss, but the execution of the speculative option business connected with the loss.