Oberster Gerichtshof, Urteil vom 06/07/2001 9 Nd 509/01
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:0090ND00509.01.0706.000
Date: 2001-07-06
Subject matter: Lugano Convention
Origin: Austria

82001AT0706(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a music student domiciled in Austria, intended to sue the defendant, a personal undertaking seated in Switzerland, for the reimbursement of a certain amount. The defendant had offered in Austria to the plaintiff, a course as well as participation to the international examination for new conductors in Sofia (BG). Thus the plaintiff had registered by posting the registration form in Austria and by transferring the fees for the course to the defendant by way of his Austrian bank account. Thereafter, he withdrew his registration. He only got back part of the paid attendance fee. The plaintiff requested the OGH (AT) to determine the competent Austrian court and founds the international jurisdiction of the Austrian courts on Articles 13 (1)(3) Lugano Convention.
The OGH indicates that concerning international contracts concluded by post, the determination of the place of conclusion of the contract is particularly problematical. The concept of “legal steps necessary” in the sense of Article 13(1)(3)(b) Lugano Convention covers in particular a written declaration or another form of expression of intention concerning an offer or an advert. The action of the consumer in his country of residence is therefore relevant and not the reception of the declaration. In this case, the two connecting factors in Article 13 (1)(3) (a) and (b) are therefore present, so that a consumer matter within the meaning of Article 13 Lugano Convention is at hand. According to Article 14 Lugano Convention, the consumer can bring proceedings in his State of residence, hence in Austria.