EUPillar OLG Karlsruhe, 15.1.2009

Summary

The plaintiff brought an action for payment from delivery contracts with the defendant. The court had to consider the international jurisdiction under the scope of application of Brussels I. It was doubtful whether the parties had effectively made a choice of forum agreement in favour of German courts. The court stated that a written choice of forum agreement pursuant to Art. 23 (1) (a) Brussels I needed to consist of two declarations of will that were subscribed in writing. Furthermore, in case of a sale by delivery to a place the place where ‘the goods were delivered or should have been delivered’ within the meaning of Art. 5 (1) (b) Brussels I was the place where the buyer is seated given that the goods were ought to be delivered there. The judgment was confirmed by the Federal Court of Justice (VIII ZR 34/09). Concerning the choice of forum agreement the Federal Court of Justice held that there was no need to decide whether there had to be two declarations in writing (as it was said by the Higher Regional Court). In fact, this doesn’t seem necessary as the CJEU stated that it could be sufficient to make reference to general terms and conditions in order to meet the requirements of the written form in Art. 23 Brussels I (Estasis Salotti, C-24/76). The Federal Court of Justice held that despite this German courts weren’t internationally competent because there had been no accordance of wills on this point. In the present case the defendant refused the offer by the plaintiff and therefore also refused the forum clause in the general terms and conditions. There always has to be a real mutual agreement on the question of the prorogation clause. This couldn’t be stated in the present case. Furthermore, at the point of time when the Federal Court of Justice was concerned with the case the judgment Car Trim (C-381/08) had already been given by the CJEU. According to this judgment a contract concerning the delivery of goods which have to be produced by the deliverer first (‘Werklieferungsvertrag’) falls under the term ‘sale of goods’ in Art. 5 (1) (b) first indent Brussels I [paragraph 44]. Also, the CJEU stated in Car Trim that the place of performance in case of the sale of goods by delivery to a place had to be defined by the contract’s agreements, alternatively was this the place of the physical overhanding of the goods to the buyer [paragraph 63]. In the present case the plaintiff had to produce and deliver items for light technology in buildings for the defendant. Therefore the contract falls under the term ‘sale of goods’ in Art. 5 (1) (b) first indent Brussels I. Given these considerations, the judgment of the Higher Regional Court is correct.