EUPillar OLG Braunschweig, 4.7.2005

Summary

The parties argued about a claim allegedly resulting from a promise of financial benefit that has been made by the defendant using misleading advertisement. It was doubtful whether claims based on § 661 a BGB (German civil code, rule on the obligation of payment regarding the promise of financial benefit) fell within the scope of application of Art. 5 or Art. 15 Brussels I. The defendant claimed that Austrian courts were internationally competent to rule the issue. The first instance court assumed the international jurisdiction of German courts. The Higher Regional Court denied the international jurisdiction of German courts. It held that claims resulting from a promise of financial benefit that could not be considered as claims regarding a consumer contract within the meaning of Art. 15 Brussels I concerned the rule of Art. 5 no. 1 (a) Brussels I. It then determined the place of performance within the meaning of Art. 5 Brussels I and came to the conclusion that Austrian courts were internationally competent because the relevant place was in Austria. In the present case the consumer and the professional hadn’t concluded a contract after the promise of financial benefit had been delivered. Therefore the general rules on international jurisdiction applied to the present case. This has been stated by the CJEU in C-96/00. The court correctly applied Art. 5 Brussels I and stated the place of performance in Austria. The judgment is correct.