Oberster Gerichtshof, Urteil vom 30/01/2007 5 Ob 4/07k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0050OB00004.07K.0130.000
Date: 2007-01-30
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT0130(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Austria, ordered two machines for the production of cigarette shells from the defendant, having its seat in the Netherlands. The main part of the order consisted in the assembly of the machines. The assembly was performed at the defendant's seat in the Netherlands. Furthermore, the defendant owed the transport, the installation and the putting into operation of the machines at the plaintiff's seat, as well as the instruction of the employees and the attendance of production. The plaintiff brought an action for damages before the court at its seat on the ground that the machines were defective. The defendant challenged the jurisdiction of the Austrian courts. It asserted that the machine had been assembled in the Netherlands. As the challenge was dismissed by the appellate court, it appealed to the OGH (AT).
The OGH (AT) affirms the judgment by the appellate court. It holds that jurisdiction of the courts at the Austrian seat of the plaintiff is established according to Article 5(1) (b) Brussels I Regulation. Pursuant to the meanwhile consolidated jurisprudence of the court, the place of performance according to this provision has to be determined solely on the basis of factual aspects without recourse to legal criteria. The place where the seller has to deliver the good in order to fulfil all his duties and where the delivery is actually accepted by the buyer as a delivery according to the contract, is crucial. In case of a work and delivery contract, to which Article 5(1) (b) Brussels I Regulation applies, the place where the good was manufactured is therefore irrelevant. It is rather important in this case that the defendant was not only obliged to assemble the machine, but also to install the latter and to put it into operation, as well as to train the employees and to attend production at the place where the plaintiff's plant is situated. Thus, the latter has to be considered the contractual place of performance.