Oberster Gerichtshof, Urteil vom 18/10/2002 6 Nc 103/02b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:0060NC00103.02B.1018.000
Date: 2002-10-18
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT1018(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant domiciled in Austria intended to file a claim against a company having its seat in Germany. In a letter from this company personally addressed to the claimant, a cash prize of 43,500 ATS and gifts to the value of 45,500 ATS were promised to him if he ordered goods. After placing the order, he neither received the promised presents nor the cash. On the basis of this, the plaintiff applied for the determination of the Austrian court having territorial jurisdiction for the decision.
According to the opinion of the OGH (AT), promises of a prize may be sued for by the consumer according to Para. 5j KSchG (Austrian Consumer Protection Act). Article 14 Brussels Convention provides for the possibility of the consumer also raising an action against the other contractual partner at the courts of the Contracting State in whose jurisdiction the consumer is domiciled. With regard to the question as to whether the the claim in the present case could also fall within notion of "consumer matters" established under Article 13 Brussels Convention, the OGH submitted a request for a preliminary decision to the ECJ. The ECJ answered the question with its decision dated 11 July 2002 C-96/00, stating that the action of a consumer against a company for the payment of a prize is to be classified as an action arising out of a contract according to Article 13(1)(3) Brussels Convention where the consumer receives a personally addressed letter from the company, which gives the impression that he will receive a prize if he orders goods for a certain amount, and he actually makes such an order, but does not receive the prize. The international jurisdiction of the Austrian courts and the necessity of a designation according to Para 28 JN (Jurisdiktionsnorm – Austrian Rules on Jurisdiction) are thereby established.