EUPillar LG Baden-Baden, 29.7.2009

Summary

The plaintiff brought an action for payment from delivery relationships. The parties had exchanged several emails and letters concerning offers and orders. A reference to general terms and conditions has been made several times. It was unclear if German courts had international jurisdiction pursuant to Art. 5 Brussels I or Art. 23 Brussels I. The court stated that in terms of the distinction between the terms ‘sale of goods’ and ‘provision of services’ within the meaning of Art. 5 Brussels I it was relevant which performance was the main one or was considered as the one characteristic for the contract. Further the court stated that in contracts concerning the delivery of production models of different consoles the character as a ‘sale of goods’ was predominant. Although there had to be made development procedures regarding the products to the purchaser the delivery was the essential aspect. Further, the court found that the mere overhanding of general terms and conditions wasn’t sufficient for an agreement within the meaning of Art. 23 Brussels I. It was not sufficient when general terms and conditions were printed on the backside of the form of a contract. Finally, it wasn’t sufficient that letters that were exchanged between the parties referred to general terms and conditions that solely were available on the internet. It is unanimously accepted that in case of mixed contracts the emphasis of the contract has to be determined. In this regard the decision therefore is correct. In Art. 23 (1) Brussels I there has to be a real agreement in order to create a valid prorogation in favour of certain courts. In case of an exchange of differing general terms and conditions a clear consensus on the issue of international jurisdiction can’t be stated. The mere exchange doesn’t ensure that the text has been read and accepted by the other party. A reference to the general terms and conditions’ text on the internet can’t be sufficient. The parties in general have to make clear that they want to determine the jurisdiction of certain courts. Therefore the judgment is correct.