Austrian OHG Upholds Choice of Law in Cross-Border Securities Deals

Mar 12, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) was requested to determine the applicability of Italian law to a cross-border commercial relationship involving an Italian consumer and an Austrian bank, notwithstanding the bank’s subsequent concentration on operations within Italy.

The plaintiff, a client with substantial expertise in financial markets and residing in Italy, had established a securities and clearing account at an Austrian banking institution in 2013. The account was specifically designated for ‘consultation-free transactions.’ Prior to entering into the agreement, the general terms and conditions were made available to him and included a governing law clause stipulating that Austrian law would apply.

From 2017 to 2019, the plaintiff acquired additional financial products and sustained losses. In the third instance, he sought compensation solely under Italian law, contending that the selection of Austrian law was ineffective due to the bank’s subsequent emphasis on activities in Italy, such as participation in an event held in Padua. As a result, he asserted that Article 6 of the Rome I Regulation is applicable, thereby establishing Italian consumer protection law as determinative.

Preliminary ruling by the ECJ

The OGH referred the matter to the Court of Justice of the European Union (ECJ), case C-279/24. On 4 December 2025, the ECJ held that Article 6(1) of the Rome I Regulation is inapplicable if its conditions are satisfied at any stage during the business relationship, even when those conditions were not fulfilled at the time of contract formation. Consequently, subsequent alignment of the business activity with the consumer's country does not affect a valid choice of law previously exercised.

According to this decision, the OGH confirmed that the selection of Austrian law was valid at the inception of the business relationship. When the contract was executed, the bank had no activities directed toward Italy, and any later shift in market orientation does not alter the applicable law.

As a result, the plaintiff was unable to rely on Italian tort law or the mandatory consumer protection provisions outlined in Article 6(2) of the Rome I Regulation. Since the plaintiff’s claims were founded solely on Italian law, without asserting liability under Austrian law, the appeal was not successful.

Accordingly, the OGH affirmed the dismissal of the claim.

OGH, 1 Ob 187/25v (27 January 2026)