Oberster Gerichtshof, Urteil vom 28/02/2000 3 Ob 45/00i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:0030OB00045.00I.0228.000
Date: 2000-02-28
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82000AT0228(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria claims payment of planning services concerning a construction contract, from the defendant domiciled in Germany. The plaintiff bases the jurisdiction of the court of his seat on the ground that the payment should have been made there. The court of first instance gave a default judgment which was repealed by the court of appeal for lack of jurisdiction.
The OGH (AT) holds, for the jurisdiction at the place of performance pursuant to Article 5(1) Brussels Convention, is to be considered the obligation which forms the basis of the claim. As regards a right concerning a construction contract, the place where the obligation shall be performed shall be determined in the absence of an agreement pursuant to the legal provisions, according to the conflict of law rules of the Contracting State which courts were seised of the dispute, as long as the uniform substantive law does not interfere. In this case, Austrian law shall be applied to the contract according to which, debts are to be discharged at the seat of the debtor, here the defendant. A differing agreement on a place of performance has not been invoked, also an Austrian place of performance cannot be deduced from the nature of the transaction Thus the Austrian courts are incompetent.