OGH; 2022-03-23; 1 Ob 38/22b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2022:0010OB00038.22B.0323.000
Date: 2022-03-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82022AT0323(51)_ENG_SUMJURE
JURE summary
JURE summary
A private limited company domiciled in Austria (hereinafter ‘the plaintiff’) filed an action against a company domiciled in Luxembourg (hereinafter ‘the defendant’).
An order confirmation regarding the delivery of different goods contained a reference to the general terms and conditions of the plaintiff. The general terms and conditions were, however, attached neither to the offer nor to the order confirmation. According to the general terms and conditions, the competent court was the court holding jurisdiction for Lochau.
The Landesgericht Feldkirch (hereinafter ‘the Court of First Instance’) as the court seised dismissed the objection of the lack of international jurisdiction as claimed by the defendant.
Despite the fact that the managing director of the defendant had no knowledge of the plaintiff’s general terms and conditions upon signing the order confirmation, he had received them prior to the conclusion of the respective contract between the plaintiff and the defendant in connection with brokering a business deal between the plaintiff and a third party. The choice-of-court agreement was, therefore, concluded effectively.
Based on an appeal of the defendant, the Oberlandesgericht Salzburg (hereinafter ‘the Court of Appeal’) dismissed the action, citing that the preconditions for an effective conclusion of a choice-of-court agreement under Article 25 of the Brussels I Regulation (recast) (1) had not been met. The mere opportunity to read the general terms and conditions which the managing director of the defendant had several months prior to the conclusion of the agreement was not sufficient to meet the requirement regarding the choice-of-court agreement to be made in writing at least upon the conclusion of a contract.
The revision filed by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found inadmissible.
A contracting party which intends to make a choice-of-court agreement must present this proposal to the other party in a clear and unambiguous manner or the other party must have a provable previous knowledge of the general terms and conditions containing the choice-of-court agreement as a result of previous mutual business transactions. The other contracting is not obliged to obtain the general terms and conditions by itself. The general terms and conditions sent by the plaintiff concerned a different business relationship with another company. The factual situation was not sufficient for having concluded an effective choice-of-court agreement.
The Supreme Court dismissed the revision of the plaintiff.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.