Oberster Gerichtshof; 2014-10-21; Dr. U. B. B.; I, GmbH; 4 Ob 161/14a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0040OB00161.14A.1021.000
Date: 2014-10-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT1021(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian physician (the “plaintiff”) sought the return of delivered equipment and refund of the deposit paid to a German private limited company (the “defendant”), which trades devices for permanent hair removal in court.
The plaintiff claimed that the Court of First Instance (Bezirksgericht Innsbruck) was responsible in accordance with Article 5(1)(a) of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”).
The defendant raised the defence of lack of international jurisdiction. The terms and conditions, which are always available on the Internet, set Düsseldorf as the place of performance and the place of jurisdiction.
The Court of First Instance dismissed the motion due to the lack of international jurisdiction. The plaintiff had agreed with the defendant on Düsseldorf as place of jurisdiction. There is a written agreement. The corner of the order form, which the applicant filled by hand though without signature, had a clearly visible note that the defendant’s terms and conditions applied. The absence of the plaintiff’s signature on the order form is not crucial because the plaintiff’s identity is clearly identifiable.
The Court of Appeal (Landesgericht Innsbruck) confirmed the decision of the Court of First Instance. The plaintiff had complemented the order form by hand, returned it to the defendant and thus accepted the offer to conclude a contract applying the terms and conditions with Düsseldorf as the place of jurisdiction.
The plaintiff’s appeal is permissible and entitled.
The Oberster Gerichtshof (“OGH”) leads in its decision that the conditions of Article 23 of the Brussels I Regulation that establish the effectiveness of jurisdiction clauses must be interpreted narrowly. It must be ensured that these clauses will not become part of an agreement unnoticed.
According to the case law of the Court of Justice of the European Union, the requirement of the written form of a jurisdiction clause established in Article 23 of the Brussels I Regulation is maintained if the agreement (the offer) explicitly refers to a jurisdiction clause contained in the terms and conditions. This must be clear to the contracting party applying due diligence.
In settled case law, for the effect of a jurisdiction clause, the OGH considers that the terms and conditions containing the jurisdiction clause must be presented to the contracting parties latest at the time of the agreement’s conclusion.
The terms and conditions’ easy accessibility on the internet is not sufficient to make a jurisdiction clause effective. The contracting party’s actual consent to the jurisdiction clause is required. The party that invokes the terms and conditions may not simply assume that the other party has read the terms and conditions. Also, the other party has no obligation to obtain a copy of the terms and conditions on their own.
In the present case, the terms and conditions were neither transmitted nor issued to the plaintiff. Therefore, there is no evidence that these were actually presented to the plaintiff prior to conclusion of the contract. Therefore, Article 5(1)(a) of the Brussels I Regulation applies and the place of jurisdiction is determined by place of performance (the place where a movable object was delivered).
The OGH followed the plaintiff’s appeal and amended the decisions of the Court of Appeal and of the Court of First Instance that the defendant’s defence of lack of international jurisdiction is discarded. The OGH referred the case back to the Court of First Instance.