Case number and/or case name
OLG Düsseldorf, 23.3.2011 – I-15 U 18/10
Summary
The plaintiff, a German company, brought an action for payment regarding the delivery of meat products. The defendant based in the Netherlands contested the international jurisdiction of German courts.
The court had to consider the international jurisdiction under Brussels I. It was doubtful whether the parties had made a prorogation of jurisdiction in favour of German courts pursuant to Art. 23 Brussels I. The court held that in general it was possible to meet the requirements of the written form in Art. 23 by referring to general terms and conditions. According to the court it was not sufficient for the assumption of Art. 23 (a) second alternative Brussels I (‘evidenced in writing’) that the general terms simply were handed over, added or imprinted on the back side of the confirmation, even if the person who introduced the terms had made a reference to their existence.
It is settled case law that Art. 23 (1) (a) second alternative Brussels I has to be interpreted restrictively in order to avoid that prorogations of jurisdiction unnoticeably become part of the contract. This interpretation promotes the object of legal security. In the present case it couldn’t be stated that there had been an agreement concerning the international jurisdiction before the disputed order was made. Also, the general terms and conditions which included the clause concerning the prorogation of the jurisdiction weren’t present when the contract was concluded. Therefore it can’t be sufficient that the general terms and conditions were added later after the person who introduced them solely stated that he was going to use them. This is in accordance with the CJEU’s jurisdiction in Segoura (C-25/76). The judgment is correct.