Oberster Gerichtshof, Urteil vom 21/12/2006 6 Ob 276/06s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:0060OB00276.06S.1221.000
Date: 2006-12-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT1221(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, commenced proceedings against the defendant, a German limited liability company, seeking damages for culpa in contrahendo. The parties had negotiated about the defendant's purchase of a building project. The negotiations progressed towards negotiated agreements which were initialed by the parties. However, a couple of days later, the defendant refused the notarisation of the agreements on the ground that the use of the building as planned was unrealisable. The plaintiff brought an action before the court having jurisdiction over his Austrian domicile seeking compensation for the damages he allegedly had suffered. The defendant asserted that the Austrian courts lacked jurisdiction over the claim.
The OGH (AT) affirms the judgment by the appellate court, which had established jurisdiction according to Article 5(3) Brussels I Regulation, and dismisses the defendant's appeal. The court refers to the ECJ's judgment of 17.09.2002 - C-334/00 - Tacconi, according to which an action founded on the non-contractual liability of the defendant is a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3). The OGH also refers to the discussion in literature which accordingly distinguishes whether liability is based on the breach of pre-contractual obligations, which for their part are based on a contract, or whether the case relates to pre-contractual obligations regarding a contract which was never concluded. In this case, the mere initialing of the agreements did not lead to a contractual relationship, as the notarisation is a formal prerequisite for their realisation. Thus, the plaintiff can bring his action before the courts having jurisdiction over matters relating to tort, delict or quasi-delict, according to Article 5(3) Brussels I Regulation.