Austrian Supreme Court (OGH) clarifies that a consumer cannot be sued at the location of their holiday home (1 Ob 127/20p)
Our firm has obtained a landmark clarification from the Austrian Supreme Court (OGH) on the question of whether a consumer can be sued at the location of their holiday home:
Our client, who has a holiday residence in another federal province, was sued for payment of an outstanding contractor’s fee in the court district of the holiday home. The claimant relied on a jurisdiction clause in its general terms and conditions. On behalf of the defendant our firm objected that the court lacked local jurisdiction, because the defendant is a consumer resident in Vienna and a jurisdiction clause is therefore ineffective. The court of first instance followed this legal view. The appellate court, however, set that decision aside and instructed the court of first instance to conduct proceedings. In the appellate court’s view, the defendant had, through her regular presence at her holiday home, made outwardly recognisable her intention to make this place a centre of her life as well, and had thereby established a further residence. At the defendant’s request the appellate court subsequently declared a further appeal admissible. The Supreme Court held that the appeal was admissible and well founded. In summary, the court ruled that it would contradict the protective purpose of section 14 of the Consumer Protection Act (KSchG) to attach a “habitual residence” to such seasonal presence, because the consumer would then be forced to appear before a court far from their home in proceedings that, as a rule, are not confined to a typical holiday season.