The plaintiff brought an action for remuneration. She had made a contractual offer that was accepted by the defendant. The acceptance included a prorogation in favour of Luxembourg Courts. The Regional Court denied the international jurisdiction of German courts.
The court held that a prorogation pursuant to Art. 23 (1) sentence 3 Brussels I could not be assumed if the main entrepreneur in his acceptance referred to the conditions of the main order which contained a prorogation.
It is settled case law (see CJEU C-24/76) that a prorogation in general terms and conditions has to be explicitly mentioned in the document or alternatively in the offer and also in the acceptance. In the present case there was a reference to the general terms and conditions only in the acceptance of the contract. Therefore it seems correct to not assume a consensus on this point.