Oberster Gerichtshof; 2018-08-23; 4 Ob 140/18v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0040OB00140.18V.0823.000
Date: 2018-08-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT0823(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns the international incompetence of the Austrian Landesgericht Wels (hereinafter ‘the Court of First Instance’), in which a limited liability company based in Austria (hereinafter ‘the plaintiff’) filed a claim for damages.
The plaintiff designed and supplied roof components for a consumer market in Germany. Because of the consumer market’s collapse, the plaintiff made claims for damages against the defendant due to the fact that the defendant calculated incorrect building mechanics. The plaintiff commissioned the defendant, as a consultant engineer for structural engineering, to provide static calculations. He carried out his calculations in Germany, where he was based, and transferred them to the plaintiff in Austria by fax. According to the plaintiff, the international jurisdiction of the Court of First Instance is based on Article 7(1)(b) of the Brussels I Regulation (recast)(1), emphasizing the transfer of the static calculations to the plaintiff to Austria by fax.
The Court of First Instance dismissed the claim of international incompetence of Austrian courts on the grounds that the place of performance of the defendant's service was located in Germany, where the defendant furnished his performance (static calculation).
The Oberlandesgericht Linz (hereinafter ‘the Court of Appeal’) upheld the decision of the Court of First Instance. In addition, the Court of Appeal allowed the ordinary appeal on points of law due to a lack of case law on whether the transfer by fax was relevant for determining the place of performance under Article 7(1)(b) of the Brussels I Regulation (recast).
Subsequently, the plaintiff lodged an appeal on points of law against the decision of the Court of Appeal in the Oberster Gerichtshof (hereinafter ‘the Supreme Court’) in Vienna, requesting to repeal the decision of the Court of First Instance and to continue the proceedings before the Court of First Instance, who is to refrain from the use of this ground for dismissal. The defendant requested that the appeal be rejected, alternatively not followed.
According to the Supreme Court, the subordinate courts rightly denied the jurisdiction of the court called, and the provisions of second indent of Article 7(1)(b) were correctly applied in reference to Austrian case law and the case law of the Court of Justice of the European Union. Under these provisions, ‘[a] person domiciled in a Member State may be sued in another Member State in matters relating to a contract, in the courts for the place of performance of the obligation in question; for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: […] in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided‘. In this case, the place of performance is located in Germany and is to be derived from the place where the defendant provided his service. The transfer of the static calculation to Austria was not suitable to establish a place of performance in Austria.
Therefore, the Supreme Court did not comply with the plaintiff’s appeal on points of law.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.