Case number and/or case name
OLG Frankfurt a.M., 5.06.2014 – 1 U 48/12
Details of the court
Germany, Second Instance
Articles referred to by the court
Brussels I
Article 5
Paragraph 1
SubParagraph a
Paragraph 1
SubParagraph b
Indent 1
Article 23
Paragraph 1
SubParagraph a
Paragraph 1
SubParagraph c
Date of the judgement
04 June 2014
CJEU's case law cited by the court
Summary
The parties argued about damage claims resulting from an purchase contract. It was doubtful whether the parties had concluded a jurisdiction agreement pursuant to Art. 23 (1) 2 (a) second alternative Brussels I (‘evidenced in writing’).
The court held that a jurisdiction agreement couldn’t be concluded ‘evidenced in writing’ if the parties had been in business relation for a long time and one party in a later concluded contract transmitted an account that suddenly mentioned a jurisdiction clause. This couldn’t be considered as indicating a consensus of wills on the issue of the place of jurisdiction.
Further, the jurisdiction established by Art. 5 no. 1 (b) Brussels I (place of performance) also extended to damage claims regarding lacks of the purchased item.
The judgment is correct. Within Art. 23 Brussels I it must be ensured that the parties actually have agreed on the question of the place of jurisdiction. This concurrence of wills can’t be stated in the present case. Regarding the application of Art. 5 Brussels I the court stays in accord with settled case law.