Case number and/or case name
OLG Celle, 24.7.2009 – 13 W 48/09
Details of the court
Germany, Second Instance
Articles referred to by the court
Brussels I
Article 5
Paragraph 1
SubParagraph b
Indent 1
Article 23
Paragraph 1
SubParagraph a
Article 60
Paragraph 1
SubParagraph a
Paragraph 1
SubParagraph b
Paragraph 1
SubParagraph c
Date of the judgement
23 July 2009
CJEU's case law cited by the court
Summary
The parties argued on the judgment of the Regional Court concerning their claims against each other. The Regional Court had assumed its international jurisdiction and had stated that the costs of the proceedings could be offset. The plaintiff contested this decision.
It was doubtful whether German courts had international jurisdiction. The Higher Regional Court held that the clause in an offer confirmation referring to general terms and conditions wasn’t sufficient to assume a valid choice of the forum within the meaning of Art. 23 (1) sentence 3 Brussels I if the text of the terms hadn’t been transmitted to the other party. This conclusion was also valid for commercial relations.
The regulations in Art. 23 Brussels I have to be interpreted restrictively. In the present case the agreement on the forum clause wasn’t clearly expressed. The general terms and conditions weren’t even transmitted together with the offer confirmation, they solely could have been found on the plaintiff’s website. Art. 23 however requires a clear agreement between the parties which can’t be stated in the present case. The decision therefore is correct.