Oberster Gerichtshof; 2018-01-24; 7 Ob 183/17p
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0070OB00183.17P.0124.000
Date: 2018-01-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT0124(51)_ENG_SUMJURE
JURE summary
JURE summary
An insurer domiciled in Austria (hereinafter ‘the plaintiff’) filed a claim for damages of his policyholder against a corporation residing in Italy (hereinafter ‘the defendant’).
The defendant supplied talc powder on the basis of five individual orders, but the last two deliveries were defective.
The effective conclusion of a jurisdiction clause between the parties is subject to the dispute. Article 23 of the Brussels I Regulation (1) shall be applicable.
The term jurisdiction is to be interpreted autonomously and assessed on a case-by-case basis. Only in the case of the second instance's misjudgement, is there a significant legal issue in favour of legal certainty (2).
An essential declaration of intent must always be proven by the party relying on the jurisdiction agreement. In the present case, this is the plaintiff. Article 23(1) of the Brussels I Regulation lays down the minimum requirements which the parties must comply with in order for the jurisdiction clause to be effective. The main purpose of the provision is to ensure that this clause does not go unnoticed in the contract itself. It must be clear from the contract that each party is aware that the contract contains this clause.
As stated by the Oberste Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) in the decision, the Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) justifiably dismissed that the formal requirements of Article 23(1) of the Brussels I Regulation were met in this present case.
A basic condition for the validity is the existence of a written form of the declarations of intention of the parties, either in the form of a document or on separate documents which demonstrably affect the same thing. If the jurisdiction clause is included in the general terms and conditions, it must be expressly referred to in the contractual text.
If the contract is concluded by offer and acceptance in various documents, the reference to the general terms and conditions with the clause in the offer is sufficient enough. In the present case, the form of acceptance differed for individual orders - communication with customer service, transmission of a separate offer by the claimant's policyholder. Therefore, there is no clear declaration of intent regarding the jurisdiction clause. The formal requirement of Article 23(1)(a) of the Brussels I Regulation has not been met.
Furthermore, the conditions of Article 23(1)(b) and (c) of the Brussels I Regulation are also not fulfilled.
The term custom (point b)) is meant as a practice regularly observed between the concrete parties. The parties to the dispute had a business relationship that was too short and not substantial enough to be able to see the clause in the form of a custom between them.
Nor is there any particular trade custom in international chemical trade with regard to these two parts of the dispute, which can be seen as a jurisdiction clause.
The Supreme Court dismissed the plaintiff's appeal in the absence of a significant legal question.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters .
(2) Article 528 (1) of the Austrian Zivilprozessordnung (Code of Civil Procedure).