Oberster Gerichtshof, Beschluß vom 22/12/2004 7 Ob 203/04k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0070OB00203.04K.1222.000
Date: 2004-12-22
Subject matter: Lugano Convention
Origin: Austria

82004AT1222(04)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff was identified as the purchaser in a contract with the defendant, a company having its seat in Germany. However, it held that it was the seller. As according to a clause in the contract "the court at the seat of the seller" had jurisdiction over all disputes, it commenced proceedings before an Austrian court.
The OGH (AT) firstly holds that the conclusion of a jurisdiction agreement according to Article 17 Lugano Convention has to be proven by the party relying on the latter. Furthermore, the parties' common intention to establish jurisdiction has to be clear and obvious. Where the clause states "the court having local jurisdiction at the seller's seat" shall have jurisdiction over all disputes, it is not sufficient that the plaintiff assumes it is the seller from a subjective point of view disregarding the wording of the contract. As an agreement with its principal was not incorporated in the contract with the defendant in dispute, the plaintff has to be considered the purchaser.