Case number and/or case name
OLG Zweibrücken, 7.2.2013 – 4 U 78/12
Details of the court
Germany, Second Instance
Articles referred to by the court
Brussels I
Article 5
Paragraph 1
SubParagraph b
Indent 2
Article 23
Paragraph 1
SubParagraph a
Date of the judgement
06 February 2013
CJEU's case law cited by the court
Summary
The parties argued about damage claims resulting from a contract for work. It was doubtful whether they had agreed on a place of jurisdiction pursuant to Art 23 (1) (a) Brussels I or if they had concluded an agreement on the place of performance within the meaning of Art 5 Brussels I.
The court stated that the parties did not effectively choose a forum pursuant to Art 23 (1) (a) Brussels I due to a lack in the consensus between the parties. It held that it was not sufficient that the plaintiff in his general terms and conditions stated that the exclusive place of jurisdiction was in L. in Germany. The plaintiff had not seen the general terms and conditions.
The court however based the jurisdiction of German courts on Art 5 no 1 (a) Brussels I. It stated that even if a work contract states that the work has to be built at the seat of the foreign contractor, the domestic seat of the customer could be agreed on as place of performance in general terms and conditions. Even though the main performance was at the contractor’s seat in Belgium, the court found that the agreement in the general terms and conditions establishing a place of performance in Germany did not differ from the ‘contractual reality’.