Case law

  • Case Details
    • National ID: 6 Ob 264/02w
    • Member State: Austria
    • Common Name:link
    • Decision type: Other
    • Decision date: 07/11/2002
    • Court: Oberster Gerichtshof (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 7
  • Headnote
    According to the ECJ ruling of 1st October 2002 (C-167/00), special jurisdiction under art 5 no. 3 of the 1968 EC Convention on Jurisdiction and the Enforcement of Judgments applies where a consumer protection body (§ 29 KSchG) has brought an action to apply for a precautionary injunction against a German supplier with regard to the use of unlawful standard terms and conditions.
  • Facts
    The Austrian Consumers’ Association, as a body entitled under § 29 KSchG to bring a class action, applied for an injunction under § 28 KSchG against a Germany-based supplier with the Court of Commerce in Vienna. The Association argued that several of the STCs being used by the German supplier in transactions with consumers contravened regulations under the KSchG as well as other Austrian laws. It was also claimed that the defendant had used these terms and conditions, inter alia, in transactions with a number of consumers in Vienna. With regard to the court’s jurisdiction, the Association referred to art 5 no. 3 of the 1968 EC Convention on Jurisdiction and the Enforcement of Judgments.
    The defendant objected that the Austrian courts were not entitled to rule on the matter and that the Court of Commerce had no jurisdiction over the case. Furthermore, the German supplier argued that the application for an injunction order did not constitute a compensation claim as per art 5 no. 3 of the 1968 Convention. According to the defendant, no act causing damage nor any actual damage had occurred within the court’s administrative district.
    The Court of First Instance rejected the claim on the grounds that the Austrian courts had no jurisdiction in the case. The Court of Appeal upheld the Austrian Consumers’ Association’s appeal and overturned the first ruling by dismissing the defendant’s objections. The defendant appealed to the OGH, requesting that his objections be upheld and the claim rejected.
  • Legal issue
    At the behest of the Austrian Consumers’ Association, the OGH filed a request for the ECJ to make a preliminary ruling with regard to the OGH verdict of 13th April 2000 (6 Ob 50/00x). The question to be answered was whether an injunction order as per § 28 KSchG compelling a party to desist from using illegal or immoral STCs, which had been applied for by a body entitled under § 29 KSchG or art 7 para 2 of Directive 93/13/EEC to bring a class action (a consumer protection body), constituted a claim on the grounds of tort or a claim on the grounds of an act equal in law to tort, which could be tried under special jurisdiction as laid down in art 5 no. 3 of the 1968 Convention. With its verdict of 1st October 2002 (C-167/00), the ECJ responded that the Convention’s regulations governing jurisdiction should be interpreted as follows: an action, brought by a consumer protection body, to apply for a precautionary injunction against the use of allegedly unfair terms by a supplier in contracts with private individuals did constitute tort – or an act equal in law to tort – as per art 5 no. 3 of the 1968 Convention.
    Based on the ECJ ruling, the OGH stated that the question of whether the Austrian court had international jurisdiction in this case had been resolved in accordance with the new Community provision art 5 no. 3 of Council Regulation (EC) 44/2001. Furthermore, the OGH ruled that the Court of Commerce in Vienna had jurisdiction under § 83c of the regulation on jurisdiction (para 3 of the regulation reads: “If the unlawful act is brought about by the contents of documents, printed material or other items sent from abroad, then the place where the item arrives or where it is handed over or distributed is to be regarded as the place at which the offence is committed for the purpose of jurisdiction.”) While the legislation assumes that the unlawful documents and printed material have already been distributed, it is nonetheless necessary to carry out an extensive assessment of whether the place where the material might be distributed should fall under the court’s jurisdiction, if only to avoid inconsistencies. If international jurisdiction as per the ECJ verdict – which expands the scope of art 5 no. 3 of the 1968 Convention – does apply, then the scope of national regulations governing jurisdiction must also be broadened, provided this is line with the aim of the law, as was the case here.
  • Decision

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