Oberster Gerichtshof, Urteil vom 22/02/2005 1 Ob 8/05s 1 Ob 17/05i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0010OB00008.05S.0222.000
Date: 2005-02-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0222(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An Austrian limited company installed a heating system in the course of a building project. The defendant was the manufacturer of the materials used for this purpose. As a result of defective materials, the apartments were damaged. The plaintiff, as liquidator of the Austrian limited company, sought damages on the ground of product liability before the Austrian courts against the defendant. In order to establish jurisdiction, he relied on Article 5(3) Brussels I Regulation. The defendant challenged the international jurisdiction of the Austrian courts.
The OGH (AT) dismisses the appeal for being inadmissible. It refers to an earlier decision, in which it had held that Article 5(3) Brussels I Regulation is only relevant for the assertion of a product liability claim, in accordance with the Austrian Product Liability Act, where the material damages were incurred by a consumer. In the present case, the damages were asserted by a company in the course of its business. Thus, there is no conclusive substantiation of a tort, delict, or quasi-delict. Hence, there is no cause for a different interpretation of Article 5(3) Brussels I Regulation from the one of Article 5(3) Brussels Convention. Furthermore, Article 5(1) Brussels I Regulation does not apply, because the parties did not voluntarily assume an obligation, as the manufacturer was not the seller.