EUPillar OLG Stuttgart, 5.11.2007

Summary

The parties argued on contractual payment claims. The defendant is a French subsidiary of a German company. The plaintiff delivered window hardware to the defendant to Monaco corresponding to the purchase contract that has been concluded between the parties. The first instance court affirmed the international jurisdiction of German courts. The Higher Regional Court affirmed the first instance court’s judgment. It stated that in case of a sale to destination the place of performance within the meaning of Art. 5 no. 1 (b) Brussels I was the place where the seller handed over the products to the carrier. Further, a ‘practice’ within the meaning of Art. 23 (1) sentence 3 (b) Brussels I could result from the fact that the parties for years have used certain general terms and conditions containing a forum clause even if the terms hadn’t been written in the other party’s language. In the present case there hasn’t been a real consensus between the parties. The defendant even has pointed out to his own general terms and conditions. This lack of an agreement can’t be covered up by the fact that the plaintiff has been using his general terms and condition for years. In this regard the decision seems to be wrong. The interpretation concerning the place of performance in case of sale to destination stays in accordance with CJEU jurisdiction.