EUPillar LG Aachen, 22.06.2010

Summary

The German plaintiff sues the Italian defendant for payment for the delivery of plastic fibers. The plaintiff claims that his German terms and conditions were printed on the back of his order confirmations and therefore included in every transaction between the him and the defendant. The plaintiff isn’t able to present them. These terms and conditions stated that the registered office of the seller was the place of performanc as well as place of jurisdiction. It further contained a choice of law clause in favour of German law. The court declines its international jurisdiction stating that there is no valid jurisdiction agreement within the meaning of Art. 23, 60(1) Brussels I. According to the court Art. 23 Brussels I should be interpreted narrowly. It then examines whether the formal requirements of Art. 23 I third sentence (a), (b) or (c) Brussels I are met. It declines the application of Art. 23 I third sentence (a) as there is no written agreement or confirmation and the mere handover of the terms and conditions is not sufficient. It also declines the application of Art. 23 I third sentence (b) as the terms and conditions are not proven to have been part of an established practice between the parties. With recurrence on C-159/97, the court states that the plaintiff has not presented a commercial usage that would establish the court’s jurisdiction. Also the court states that its international jurisdiction can’t be based on Art. 5 no.1, 60(1) Brussels I. Regarding Art. 5 no.1 Brussels I the place of performance for the delivery of movable goods is the place where the goods are delivered or should have been delivered according to the contract. This place lies in Italy. Although the parties are free to agree on another place of performance, the outcome is not changed due to the lack of a correct inclusion of the plaintiff’s terms and conditions. The validity of an agreement on a particular place of performance is governed by the lex causae which in this case is the CISG. The court declines the inclusion of the terms and conditions according to Art. 8 and 19 CISG. The court states correctly that the mere handover of the terms and conditions is not sufficient for an agreement upon them in any case. This finding is in full correspondence with German scientific literature and the ruling of the CJEU. The court’s reasoning in relation to Art. 5 no.1 Brussels I and the validity of an agreement of a different place of performance is also not to be criticized as it is in line with the national literature and jurisdiction.