EUPillar LG Augsburg, 23.2.2010

Summary

The German plaintiff sues the defendants for payment of the supply of displays and other technical accessory parts. After these components were ordered, the plaintiff sent his terms and conditions of sale and delivery to the Austrian defendant No. 2 which stated that German courts should have the international jurisdiction. The parts were delivered to the defendant No.1. The Regional Court of Augsburg doubts the international jurisdiction of German courts. It argues that there was no effective agreement of jurisdiction within the meaning of Art. 23 I Brussels I. The agreement in favor of German courts in the provided terms and conditions is invalid as there was no agreement of including said arrangement. Furthermore, the formal requirements are not met. Also, Art. 5 no.1 in conjunction with Art. 60 Brussels I don’t constitute the international jurisdiction of German courts. These articles are applicable to all disputes arising from the contract, including the claim for payment. Pursuing Art. 5 no.1 (a) it is possible to file a suit in the place of performance of the obligation. The courts notes that in the case of a sale of dispatch the place, where the buyer (should have) obtained actual power of disposal of the goods is seen as the place of performance. It also mentions a deviating legal opinion where the place of the handover to the carrier is seen as the place of performance. The court doesn’t consider it necessary to decide this legal controversy as the place of delivery pursuant to Art. 5 no.1 (b) Brussels I on which was agreed upon was Essen, Germany. The court’s reasoning in regard of Art. 23 I Brussels I is consistent with German scientific literature, where the mere handover of terms and conditions which include provisions on international jurisdiction is not considered sufficient to be seen as an agreement conferring jurisdiction as a mutual consent is not possible. Also, regarding Art. 5 no.1 Brussels I the court’s reasoning is in accordance with the prevailing opinion in German scientific literature. The place of delivery which is the place of performance (Art. 5 no.1 (b)) was Essen, Germany. Therefore the Regional Court of Augsburg, Germany did not have international jurisdiction over this case.