Oberster Gerichtshof, Beschluß vom 28/07/1998 1 Ob 173/98t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0110435
Date: 1998-07-28
Subject matter: Lugano Convention
Origin: Austria

81998AT0728(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is an attorney. He brought an action for payment of fees before the Bezirksgericht of St. Johann in Pongau (AT) against the defendant, domiciled in Germany, asserting that he had advised a company, having its seat in Wagrain (AT) regarding the purchase of real property. Later the company assigned all its assets to the defendant, who therefore now owed the attorney's fees. The plaintiff contended that the court had jurisdiction as the court at the place of performance. Moreover, the defendant had allegedly entered an appearance without challenging jurisdiction by linking his objection to the payment order of the plaintiff to submissions on the merits and he had challenged jurisdiction only at a later point in time. The Bezirksgericht as well as the Landesgericht of Salzburg (AT) dismissed the action for lack of jurisdiction. The plaintiff appealed to the OGH (AT).
The OGH (AT) allows the appeal. It holds that the defendant did not establish the jurisdiction of the Austrian courts by entering an appearance without challenging jurisdiction. In the context of Article 18 Lugano Convention, the point in time until which the defendant may challenge jurisdiction is determined according to the law of the forum State. In Austria jurisdiction can still be challenged during the preparation of the first hearing, as in this case. The place of performance of the defendant's obligation to pay fees under Article 5(1) Lugano Convention has to be determined pursuant to the applicable Austrian law according to the conflict of law rules. Thus, the place of performance of the obligation to pay is at the debtor's seat. Accordingly, his seat at the time the contractual relationship was established has to be considered, i.e. in this case Wagrain (AT), where the company was seated. Even if the debtor later changes his domicile, the place of performance remains the same. This also applies where the obligation is transferred to a third person, as in this case.