PIL instrument(s)

Case number and/or case name

OLG Oldenburg, 20.12.2007 – 8 U 138/07

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

19 December 2007

Appeal history

CJEU's case law cited by the court

Summary

The parties argued on damage claims. The plaintiff is a German company based in O. (Germany) who ordered tools from the defendant, a company based in Spain. The plaintiff in his orders referred to his general terms and conditions which stated that the German courts should have international jurisdiction. Due to delays in the delivery the plaintiff brought an action for damages before the German Regional Court that refused the action because of a lack of international jurisdiction. The second instance court affirmed the judgment. It held that the general acceptance of one party’s general terms and conditions didn’t include a reference to a forum clause as clear as it was required by Art. 23 (1) 3 (a) Brussels I if the general terms and conditions weren’t present at the moment of the conclusion of the contract. Further, there was no usage within the meaning of Art. 23 (1) sentence 3 (c) Brussels I saying that referring to general terms and conditions without them being handed over to the contracting party constituted a valid agreement on jurisdiction. Concerning Art. 24 the court found that a court didn’t become internationally competent if the defendant additionally to the reprimand of international jurisdiction solely had alternatively provided information on the substantive issue of the proceedings. The judgment promotes the necessary restrictive interpretation of Art. 23 Brussels I. It is not encouraged that forum clauses become part of the contract easily by simply referring to them without a consensus between the parties. In the present case the approval of the general terms and conditions by the contract partner couldn’t be clearly and doubtlessly stated because in the moment of the conclusion of the contract the general terms and conditions weren’t present. Regarding Art. 24 Brussels I it is in accordance with the generally accepted interpretation of that rule to allow an alternative negotiating on the substantive issue of the proceedings. Therefore, the judgment is correct.