Oberster Gerichtshof, Beschluß vom 25/02/1999 2 Ob 41/99i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0111715
Date: 1999-02-25
Subject matter: Lugano Convention
Origin: Austria

81999AT0225(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, who operates a hotel in Austria, sought payment of cancellation fees regarding a group reservation from the defendant, a tour operator having its seat in Germany. He commenced proceedings before the Austrian court at his domicile asserting that the latter was competent due to a jurisdiction agreement which had been concluded with the defendant. The defendant contested the conclusion of a jurisdiction agreement. The court of first instance dismissed the action for lack of international jurisdiction. The appellate court however, accepted jurisdiction and ordered the court of first instance to continue the proceedings. The defendant appealed.
The OGH (AT) dismisses the appeal and affirms the appellate judgment. It holds that the Lugano Convention applies to the proceedings. The international jurisdiction of the Austrian courts seised was established by the parties according to the formal requirements of Article 17 Lugano Convention. The court finds that in the scope of the initiation of the transaction, the plaintiff had sent the defendant a brochure containing various offers as well as the plaintiff's terms and conditions, including a jurisdiction clause. Upon the defendant's interest, the plaintiff had made a binding offer and had expressly indicated that the offer was made on the basis of the terms and conditions which the defendant had already received. The defendant had accepted the offer in writing. Thus, the OGH (AT) holds that the offer and its acceptance were sufficient in order to fulfil the formal requirements of Article 17 Lugano Convention. It is irrelevant that the offer itself did not contain the terms and conditions, as the defendant had already received them. The express reference within the offer was sufficient for their implication.