Oberster Gerichtshof, Urteil vom 09/12/2002 4 Nc 107/02a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:0040NC00107.02A.1209.000
Date: 2002-12-09
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT1209(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, received a letter, the sender of which was named as a Swiss company, but which corresponded from Italian territory. The letter promised a prize of ATS 400,000 to him under certain circumstances. The enclosed "order form" was however addressed to the Swiss company. The plaintiff crossed out the terms concerning goods, signed the "prize acceptance form" and sent it to the address provided. When the prize was not paid, he demanded payment before the Austrian courts. The Court of First Instance dismissed the action and referred the application for designation of the court having local jurisdiction to the OGH.
The OGH (AT) stays the proceedings on the application for designation until ECJ case C-27/02 has been decided (preliminary ruling request by the OLG of Innsbruck to 4 R276/01x). The OLG of Innsbruck had referred a question to the ECJ for a preliminary ruling in a very similar case, concerning whether a contractual claim exists, according to Article 13(1) Sentence 3 Brussels Convention, if the prize is not dependent on ordering goods, and the consumer claims the prize without ordering goods. Until now, the ECJ had only clarified that a claim arising from a contract under Article 13(1) Sentence 3 exists where a consumer in a Contracting State in which he is domiciled, makes a claim under the law of that State for payment from a mail order company having its seat in another Contracting State. This is the case where the consumer receives correspondence personally addressed to him, which gives the impression that he will receive a prize if he orders goods for a sum, and he orders the  goods without receiving the prize.