Austria, Supreme Court, 18 October 2012 4 Ob 172/12s

Identification of the case

• Freedom to conduct a business (art. 16 CFREU)
• Consumer protection (art. 38 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• §§ 41, 50, 52 Zivilprozessordnung (§ 41, § 50, § 52 Austrian civil procedure act)

• art 15 (1) (c), art 16 Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

Summary of the case

The plaintiff, domiciled in Austria, searched on the internet for a car which she wished to acquire for her private use. At the German search platform www.mobile.de, she obtained a list of vehicles with specifications she searched for. After selecting a vehicle she was directed to an offer from the defendants, who operate a motor vehicle retail business via a partnership established in Hamburg (Germany).

Wishing to obtain more information about the vehicle offered on the search platform, the plaintiff contacted the defendants, using the telephone number stated on their website, which included an international dialling code. As the vehicle was no longer available, she was offered another vehicle, details of which were subsequently sent by email. She was also informed that her Austrian nationality would not prevent her from acquiring a vehicle from the defendants.

The plaintiff then went to Germany and, by a contract of sale signed in Hamburg, bought the vehicle from the defendants taking immediate delivery of it. On her return to Austria the plaintiff discovered that the vehicle was defective, and consequently asked the defendants to repair it.

When the defendants refused to repair the vehicle, the plaintiff brought proceedings in the court of her place of domicile, the Landesgericht Wels (Regional Court, Wels in Austria), for rescission of the contract, which she claims to have concluded as a consumer with an undertaking directing its commercial or professional activities to Austria, a case falling within Article 15 (1) (c) of the Brussels I Regulation.

The defendants contested the plaintiff’s status of ‘consumer’ and the international jurisdiction of the Austrian courts, arguing that the dispute should be brought before the competent German courts.

The court of first instance, the Landesgericht Wels, dismissed the action, declaring that it lacked jurisdiction.

The plaintiff appealed against that decision to the Oberlandesgericht Linz (Higher Regional Court Linz), which confirmed the decision at first instance.

The plaintiff brought an appeal on a point of law to the Oberster Gerichtshof (Supreme Court) against that judgment, which initiated the preliminary ruling procedure.

• Civil judicial enforcement

Appeal, dismissal of objection of lack of jurisdiction, decision in respect of jurisdiction, compensation of plaintiff for costs of intermediate proceeding regarding place of jurisdiction.

Does the application of Article 15(1)(c) of Council Regulation (EC) No 44/2001 [the Brussels I Regulation] presuppose that the contract between the consumer and the undertaking has been concluded at a distance?

As the plaintiff concluded the contract for private purposes the supreme court regards the plaintiff to be a consumer in the meaning of Article 15(1)(c) of the Brussels I Regulation. The Austrian supreme court refers to Article 15(1)(c) of the Brussels I Regulation as interpreted by the CJEU in its joined judgements C-585/08, Pammer, and C-144/09, Alpenhof. The Austrian supreme court regards the criteria as met, as laid down by the CJEU in these joined judgements, in order to consider the defendants to have pursued their commercial activities in Austria also. Therefore decisive were the facts, that the defendants showed their telephone number with international code on their website, submitted photos and further information regarding the vehicle to the plaintiff and confirmed her Austrian domicile would not cause any problem. According to the preliminary CJEU judgement the supreme court stated Article 15(1)(c) of the Brussels I Regulation does not require the contract between the consumer and the trader to be concluded at a distance. Consequently, all requirements of Article 15(1)(c) of the Brussels I Regulation are met and it applies to the case. As a consequence, according to Art 16(1) the Austrian Landesgericht Wels as court of the consumer’s domicile has jurisdiction to hear the claim. The defendants objection of lack of jurisdiction has to be dismissed. Since the plaintiff won the interim proceeding in respect of jurisdiction the defendants have to reimburse her the legal costs exclusively caused by the interim proceeding.

The referring court decided, that the Austrian court of plaintiff’s domicile has jurisdiction to hear the action against the defendants based in Hamburg (Germany) according to the CJEU judgements mentioned.

Role of the Charter and role of the general principles on enforcement

Neither the CJEU nor the supreme court provide information whether they regard the charter to be applicable.

• Right to access a court
• Right to an effective remedy before a tribunal
• Right to a fair trial
• Right to a fair hearing by an independent and impartial tribunal previously established by law.

No direct reference to national provisions as legal basis for principles and rights above. Only reference to §§ 41, 50, 52 Zivilpozessordnung (§ 41, § 50, § 52 Austrian civil proceedings act) regarding the decision on costs of proceedings.

No direct relevance as the decision primarily only states that an Austrian court (the Landesgericht Wels) has jurisdiction over the action against the defendants. The plaintiff’s legal costs (EUR 2.366,08 including VAT) to be compensated by the defendants are not excessively high. The defendant’s obligation to bear these costs is obviously in line with the limits to be derived from fundamental rights (Art 6 and 13 ECHR and Art 47 CFREU).

• Equivalence
• Effectiveness

The deciding court applied the allocation of jurisdiction according to art. 15 and 16 Brussels I Regulation as effective as it would have done by applying law of purely Austrian origin.

In accordance with the principle of effectiveness the deciding court applied art. 15 and 16 Brussels I Regulation.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

• CJEU, C-585/08, Pammer and C-144/09, Alpenhof

Preliminary reference.

To find out if the Austrian court as court of plaintiff’s domicile has jurisdiction to hear the action.

Clarified Jurisdiction of the regional court Wels.

Additional notes on the decision

Clarified allocation of jurisdiction for similar cases in the future.