The plaintiff brought an action for the repayment of the purchase price. The defendant contested the international jurisdiction of German courts and referred to a prorogation agreement between the parties that – according to her – was concluded with the main contract concerning the delivery of a cylinder. The Regional Court assumed the international jurisdiction of German courts.
The court had to consider the international jurisdiction of German courts. It was doubtful whether the parties had made a prorogation in favour of the English courts. The court stated that there was no ‘usage’ within the meaning of Art. 23 (1) (c) Brussels I saying that a prorogation is effectively made when one party simply says nothing when faced with an acknowledgment of order that contains a prorogation in favour of foreign courts.
The plaintiff had ordered the cylinder by referring to her ‘conditions of supply’. The defendant had confirmed this order by referring to her ‘conditions of sale’. The ‘conditions of sale’ contained a clause according to which the English courts had the international jurisdiction. Regarding Art. 23 (1) (c) Brussels I it is necessary that there has been an actual consensus between the parties on the question of the international jurisdiction. In the present case this could not be stated because it was not clear whether the plaintiff actually had accepted the clause. The plaintiff should have had referred to the clause in order to make it valid between the parties. Therefore it seems reasonable to deny the validity of the clause what leads to the international jurisdiction of German courts pursuant to Art. 5 no. 1 (b) Brussels I.