Oberster Gerichtshof, Urteil vom 10/09/2003 7 Ob 188/03b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0104399
Date: 2003-09-10
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82003AT0910(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff was seated in Austria and was also lessee of business premises there. The plaintiff demanded that the defendant, an incorporated company with its seat in Germany, make a once off payment or, alternatively, pay damages for a breach of faith based on the doctrine of culpa in contrahendo. The defendant had offered to make the once off payment in return for the lease of plaintiff as the defendant was interested in taking over the premises. The defendant, however, was unable to reach an agreement on the lease with the landlady, who was not party to the proceedings. The defendant, thus, did not consider that it was obliged to pay the sum. Moreover, it contested the jurisdiction of the Austrian courts with regard to this matter. Both the Court of First Instance and the Court of Second Instance held that they did not have jurisdiction.
The OGH (AT) confirms the findings of the lower courts. Article 22 (1) Brussels I Regulation is not applicable as a mere connection between the action taken and a lease contract is not sufficient: only the obligations which directly arise from lease contracts between the contractual parties to the legal transaction fall within this provision. Likewise, the Court holds that the jurisdiction, pursuant to Article 5 (1) Brussels I Regulation, of the courts of the place of performance of the obligation does not arise. The subject matter of the action, even if it is contested whether the obligation actually exists, is the obligation to pay a pecuniary debt and not to hand over the place of business. A pecuniary debt is to be paid both according to Austrian and German law at the seat of the debtor, i.e. in Germany. This also applies to the claims for damages asserted in the alternative. It is immaterial whether the damages occurred in Austria.