OGH: Pro forma declarations do not establish entrepreneurial status

Mar 4, 2022 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the international and local jurisdiction of a case pending in Switzerland between an alleged consumer and an entrepreneur.

The defendant operates a business system in Switzerland that is designed to issue discount vouchers. For this purpose, an independent registration has to be made, which is based on an agreement for "free marketers". In this agreement, the contractual partner is referred to as an independent entrepreneur. In addition to the possibility of receiving remuneration in this "programme" (meaning the business model), it is also possible to recruit new members independently. The agreement also stipulated that the place of jurisdiction was Switzerland. The plaintiff purchased discount vouchers for a total of EUR 7,400, which he sued for - after deduction of a payment by the defendant. For him, the purchase had only been intended as a private investment.

While the court of first instance granted the claim with reference to Article 15 of the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Lugano Convention 2007), the court of appeal reversed the decision. For the court of appeal, the subjective purpose of the assessment affirmed by the court of first instance was irrelevant, so that the plaintiff is to be qualified as an entrepreneur.

The OGH considered:

According to Art 17 of the Lugano Convention 2007, agreements on jurisdiction with consumers are only permissible after the dispute has arisen. For the qualification as a consumer, the position within the concrete contract in connection with its nature and purpose is decisive. Even the possible reference to a future professional or commercial activity was detrimental. According to the agreement made, the "marketer" is not obliged to pursue a sales activity. The plaintiff's declaration of submission to the status of entrepreneur was therefore only a formal requirement that was detached from the actual professional activity. The OGH thus assumed a consumer contract and reversed the contested decision.

OGH 8 Ob 71/21f (29.11.2021)