Oberster Gerichtshof, Beschluß vom 07/02/2007 2 Ob 280/05y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:0020OB00280.05Y.0207.000
Date: 2007-02-07
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT0207(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff was the distributor in Austria of the German defendant trading company. Initially, the parties had performed deliveries according to the orders printed on the defendant's business paper. The defendant's terms and conditions, including a jurisdiction clause conferring jurisdiction on the German courts were printed on the back side. In the course of the negotiations regarding the distribution agreement, a jurisdiction agreement was not discussed. Neither did the text of the contract contain such an agreement. However, the low end of each page of the distribution agreement signed by both parties, which was printed on the defendant's business paper, contained the reference "Jurisdiction R.". The plaintiff commenced proceedings before the Austrian court at its seat based on the meanwhile terminated distribution agreement. He asserted that the Austrian courts had jurisdiction according to Article 5(1) (b) Brussels I Regulation, as the defendant had delivered the goods "free domicile" to Austria, according to the agreement. The defendant invoked the jurisdiction agreement in favour of the German courts in R..
The OGH (AT) affirms the decision of the lower courts which dismissed the action for lack of international jurisdiction. The jurisdiction agreement was validly concluded. The formal prerequisite of writing within Article 23 Brussels I Regulation answers the purpose of avoiding the unnoticed introduction of jurisdiction clauses in agreements. However, there can be no talk of surprise effect in this case, as the plaintiff had knowledge of the defendant's terms and conditions as well as of the jurisdiction clause from the foregoing supply relationship. The supply agreements and the distribution agreement have to be distinguished. Nevertheless, when the plaintiff signed the latter, he also signed the reference to the jurisdiction of the German courts printed on the defendant's business paper and thus accepted it.