Johann Gruber v. Bay Wa AG

Johann Gruber (plaintiff) operated a farm in Austria. The primary farm building was used both as a residence and for agricultural purposes. Gruber saw an advertisement in an Austrian paper for roof tiles from the German company Bay Wa AG (defendant). Bay Wa sold building materials at a business near the German-Austrian border in Pocking, Germany. Gruber telephoned Bay Wa about the roof riles and then visited the Pocking business to see the tiles before buying them. Gruber did not mention farming initially but told employees during his visit that he intended to retile the roof of his farm building. Gruber did not state whether the building was used privately or for commercial purposes. Gruber accepted a pricing offer for the tiles after returning to Austria. Gruber retiled the roof using the Bay Wa tiles and determined that, in violation of a color-uniformity warranty, the tile colors varied. Gruber sued Bay Wa for damages in an Austrian regional court. Bay Wa objected that the court lacked jurisdiction. The regional court found that jurisdiction was properly established under the Brussels Convention (the convention) and dismissed Bay Wa’s objection. Bay Wa appealed to the higher regional court, which dismissed Gruber’s case because it found that Gruber did not predominately act as a consumer in entering the contract and therefore the special jurisdictional rules permitting suit in Austria did not apply. Gruber appealed to the Austria Supreme Court of Justice (the Supreme Court). The Supreme Court referred questions seeking clarification of Articles 13–15 to the European Court of Justice for a preliminary ruling.