Referring court and Member State
Austria, Third Instance, Oberster Gerichtshof
Summary
This case concerns the interpretation of Art 6 of the European Order for Payment Procedure Regulation, read in conjunction with Art 17 thereof, and of Art 24 of Brussels I. It was referred to the CJEU in a European order for payment procedure initiated by Goldbet (a company, established in Austria, which organises sports betting services) against Mr Sperindeo (residing in Italy). Mr Sperindeo and Goldbet entered into a contract for the provision of services by which he undertook to set up and operate sports betting services in Italy. Under the contract, he was required to collect bets from local betting offices and to send the sums to Goldbet, after deduction of winnings paid to players. By claiming that he had failed to fulfil his contractual obligations, Goldbet brought an action against him in Austria before the competent court under the European Order for Payment Procedure Regulation for an order for payment to be issued requiring him to pay the sum of EUR 16 406 by way of damages. The order for payment was granted. Sperindeo lodged a statement of opposition to the order and argued that Goldbet’s claim was unfounded and that the sum claimed was not payable. The court referred the case to the Regional Court by taking the view that the latter court was the competent court for the ordinary civil procedure under Art 17(1) of the European Order for Payment Procedure Regulation. Before that court, Sperindeo pleaded, for the first time, a lack of jurisdiction of the Austrian courts, on the ground that he was domiciled in Italy whereas Goldbet contended that the court had jurisdiction as the court for the place of performance of the obligation to pay a sum of money under Art 5(1)(a) of Brussels I. Goldbet further argued that, in any event, the court had jurisdiction under Art 24 of Brussels I since Mr Sperindeo had entered an appearance. The court granted Sperindeo’s application, declined jurisdiction and dismissed the action brought before it. The order was appealed against and it was dismissed on the grounds that the Austrian courts did not have jurisdiction because Goldbet’s claims arose from a contract for the provision of services the place of performance of which, under Art 5(1)(b) of Brussels I, was in Italy, and, moreover, the jurisdiction of the Austrian courts could not be founded on Art 24 since the statement of opposition lodged by Sperindeo could not be regarded as constituting the entering of an appearance. At appeal on a point of law, the referring court considered that the Austrian courts do not have jurisdiction under Art 5(1)(b), given that Sperindeo carried out the contractual tasks exclusively in Italy, but nevertheless referred some questions to the CJEU. For the question whether a statement of opposition to a European order for payment that does not challenge the jurisdiction must be regarded as constituting the entering of an appearance under Art 24 of Brussels I, the CJEU answered in the negative. By agreeing with the AG, it observed that the statement of opposition can produce the effects only set out in the European Order for Payment Procedure Regulation (ie that that Regulation does not apply). Even though the statement of opposition does not contain any challenge to jurisdiction and it does contain arguments on the substance of the case this cannot be regarded as constituting the entering of an appearance under Art 24 of Brussels I. This was a correct interpretation of the interrelationship of the European Order for Payment Procedure Regulation and Brussels I and of the effects of opposition statements on jurisdiction.