Oberster Gerichtshof, Urteil vom 10/09/2003 7 Ob 189/03z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117972
Date: 2003-09-10
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0910(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, was a client of the defendant, a mail order company, having its seat in Germany. The plaintiff received a catalogue from the defendant, together with notification that she had won a prize, which she could claim by ordering goods. Despite ordering several articles for personal use, the defendant did not pay out the promised prize. The plaintiff sued the defendant in the Austrian courts for the amount of the prize. The defendant primarily contested the jurisdiction of Austrian courts. The court of second instance held that it did not have jurisdiction, because Article 14 Brussels Convention governs international, not local, jurisdiction. According to Article 5(1) Brussels Convention, the place of performance in respect of the debt is Germany.
The OGH (AT) initially follows the ECJ decision of 11 July 2002 (C-96/00), according to which a claim founded on the promise of a prize conforming to Para. 5 j KSchG (Austrian Consumer Protection Act) constitutes a claim emanating from a consumer contract under Article 13(1)(3) Brussels Convention, where payment depended on an order of goods and an order was, at least, alleged to have been made. As Article 14 Brussels Convention only determines the international jurisdiction of Austrian courts, the jurisdiction of the court at the place of performance under Article 5(1), which is generally applicable in matters relating to a contract, might be considered in order to establish local jurisdiction. This must be determined according to German or Austrian law. In either case, an obligation to be performed at the place of business of the debtor is presumed, and therefore fulfilment should occur at the seat of the debtor, in this case Germany. For this reason, the Austrian courts do not have local jurisdiction.