Oberster Gerichtshof, Urteil vom 26/02/2002 1 Ob 34/02k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116211
Date: 2002-02-26
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0226(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
Disputes arose between a German and an Austrian party relating to an agreement concluded in 1989. The Austrian plaintiff sued the German defendant in Austria for payment of debts and invoked Article 5 (1) as well as Article 5 (5) Brussels Convention. In the past, the German company had requested that the invoices be billed to a company, having its seat in Austria, which had been founded in 1990. The plaintiff held that this company was a branch, respectively an agency, of the German defendant.
The OGH (AT) declines jurisdiction according to Article 5(1) Brussels Convention. The request of the German defendant to bill the Austrian company constitutes a unilateral request, which is revocable at any time. It does not constitute an agreement on a place of performance in Austria. As according to Austrian law, money debts are generally considered sending debts, the place of performance of the defendant's obligation to pay is rather in Germany, where the latter has its seat. Jurisdiction cannot be established according to Article 5(5) Brussels Convention either, as the company which the plaintiff indicated as branch or agency of the German defendant was founded after the conclusion of the agreement between the parties. A dispute arising from "the operations" of a branch, agency, or other establishment within the meaning of Article 5(5) Brussels requires that the obligations of the defendant were established by its branch, which was impossible in this case.