Oberster Gerichtshof, Urteil vom 06/07/2009 4 Nc 11/09v
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0124949
Date: 2009-07-06
Subject matter: Lugano Convention
Origin: Austria

82009AT0706(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant, domiciled in Austria, applied to the OGH (AT) for a determination of the locally competent court for an intended action for damages against the respondent, whose seat was in Switzerland. He stated that he had charged the respondent with the management of the currency risk of his loan. Allegedly, the respondent was culpable in failing to convert a foreign currency loan from the Japanese Yen into Swiss Francs, whereby he suffered extensive losses. The "client agreement" concluded with the respondent did provide for the jurisdiction of the Swiss courts. However, he claimed that this jurisdiction agreement was ineffective as he is a consumer. He took out the loan to finance the purchase of a condominium. The requirements of Article 13 Lugano Convention 1988 are also fulfilled. The contract with the respondent was preceded by contact in Austria. The applicant also took the steps necessary for the conclusion of the contract in Austria.
The OGH holds that a matter relating to a consumer contract is concerned. The term of consumer in Article 13 Lugano Convention 1988, which corresponds largely with the term of consumer in Article 5(1) Rome Convention 1980, must be given an interpretation autonomous to the Convention. It refers only to an end customer who is not acting for a purpose related to his trade or profession. The taking out of a loan by the applicant must be assigned to his private sphere, wherefore a matter relating to a consumer contract within the meaning of Article 13 et seqq. is concerned. Accordingly, a jurisdiction agreement which is entered into before a dispute has arisen is ineffective pursuant to Article 15 Lugano Convention 1988. Article 14 Lugano Convention 1988 only stipulates the international jurisdiction of the Austrian courts. Therefore, the locally competent court must be determined by way of a procedure called ordination. The OGH holds that the locally competent court for the action is the Landesgericht of Feldkirch.