Oberster Gerichtshof, Beschluss vom 28/01/2011 6 Ob 257/10b H***** GesmbH / O***** H*****;Oberster Gerichtshof, Urteil vom 28/01/2011 6 Ob 261/10s P. / R. GmbH & Co. KG
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0060OB00257.10B.0128.000
Date: 2011-01-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0128(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant operates a hotel in Austria. She has an internet website for this purpose, which is accessible in Germany. The defendant, who is domiciled in Germany and who is undisputedly a consumer, reserved a room in the hotel per email. The claimant sought payment from the defendant for the accommodation. He argued that the Austrian court of first instance had jurisdiction under Article 5(1) Brussels I Regulation. The defendant raised a plea of lack of jurisdiction of the court. As a consumer, he could only be sued in Germany pursuant to Article 15(1)(c). At first and second instance, the action was dismissed for lack of international jurisdiction on the basis that the claimant directed her activities within the meaning of Article 15(1)(c) at the German market. She lodged an appeal on a point of law.
The OGH (AT) examines whether a trader whose activities are presented on a website may be considered as a trader who “directs” her activities to the Member State of the consumer’s domicile within the meaning of Article 15(1)(c). In this regard, it is necessary to evaluate whether, before the possibility to form a contract with the consumer arises, one can perceive from the website and from the sum of the defendant’s commercial activities that he was ready to form a contract with consumers who are domiciled in one or more Member States, including the Member State where the consumer in question is domiciled. In contrast, the mere accessibility of the website in the Member State of the consumer’s domicile does not suffice. The same is true regarding an electronic address or other address information, or the use of a language or currency that is the usual language and/or currency in the Member State in which the trader is established.