Oberster Gerichtshof; 2018-04-27; 8 Ob 99/17t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0080OB00099.17T.0427.000
Date: 2018-04-27
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82018AT0427(51)_ENG_SUMJURE
JURE summary
JURE summary
A self-employed veterinarian domiciled in Vienna (hereinafter ‘the plaintiff’) brought an action seeking the termination of a contract and the repayment of sums paid by him minus the remuneration received from a company domiciled in Switzerland operating an international purchasing and advertising company (hereinafter ‘the defendant’). The defendant allegedly promised high profits and return of the capital at any time. However, it was allegedly an inadmissible pyramid scheme.
The plaintiff based the jurisdiction of the Handelsgericht Wien (hereinafter ‘the Court of First Instance’) on Articles 15 and 16 (jurisdiction over consumer contracts) of the new Lugano Convention (1), Article 5(1)(a) (the jurisdiction of the place of performance of the obligation in question) of the Convention and Article 5(3) (jurisdiction in matters relating to tort, delict or quasi-delict) of the Convention.
The defendant raised a plea of lack of jurisdiction of the Court of First Instance. The plaintiff, as a trader, cannot rely on jurisdiction over consumer contracts under Articles 15 and 16 of the new Lugano Convention.
The Court of First Instance dismissed the action for lack of international jurisdiction. The plaintiff must be regarded as an entrepreneur given the close connection between commercial activity and the conclusion of the contract with the defendant, as he could not successfully appeal to the jurisdiction of the place of performance and the criminal jurisdiction.
The Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) rejected the appeal of the plaintiff. During the appeal, the plaintiff completely disregarded the grounds for the jurisdiction over consumer contracts and focused only on the jurisdiction over torts. Claims for damages arising from tortious acts in connection with a capital investment only fall under Article 5(3) of the new Lugano Convention if there was no contractual relationship at all between the contracting parties, or if the alleged conduct could not be regarded as a breach of contractual obligations, which, in this case, does not apply.
The plaintiff's appeal to the Obersten Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) was rejected due to lacking prerequisites under § 528 ZPO (2).
The decisive factor was whether the claim asserted by the plaintiff is covered by Article 5(3) of the new Lugano Convention (status of offence) as interpreted by the Court of Justice of the European Union. Such actions are not covered by this Article if they are the main reason for concluding the contract (3).
The plaintiff did not base his claims at all on the breach of pre-contractual protection and due diligence obligations, but essentially on the illegality of the contract itself. Therefore, the legal opinion of the lower courts is correct that the action is not based on any claims arising from the harmful event in accordance with Article 5(3) of the New Lugano Convention, and that the plaintiff cannot rely on tort jurisdiction.
For that reason, there is no legal question of considerable importance.
The Supreme Court rejected the plaintiff's appeal as inadmissible.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zivilprozessordnung (Code of Civil Procedure): the decision depends on the resolution of a legal matter of substantive or procedural law, which has significant meaning.
(3) Judgment of the Court of Justice of 27 September 1988, Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co. and others, Case 189/87, ECLI:EU:C:1988:459, paragraph 9
Judgment of the Court of Justice of 27 October 1998, Réunion européenne SA and Others v Spliethoff's Bevrachtingskantoor BV and the Master of the vessel Alblasgracht V002, C-51/97, ECLI:EU:C:1998:509.