Oberster Gerichtshof, Urteil vom 29/08/2002 6 Ob 185/02b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:0060OB00185.02B.0829.000
Date: 2002-08-29
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0829(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a company having its seat in Austria, sought damages and a price reduction from the defendant, an Italian company, before an Austrian court on the ground of the delivery of defective marble slabs. The plaintiff had ordered the goods by letter, which, at the bottom of the first page outside the continuous text of the contract, contained the clause "place of jurisdiction [Austria]". It was contained in a footer, which in relation to the main text was one third smaller, ans was printed next to information on the company. Besides, the order of the plaintiff referred to general terms and conditions, which however had neither been attached nor brought to the attention of the defendant. The Austrian court of first instance denied jurisdiction for lack of a valid jurisdiction agreement, which was affirmed by the court of appeal.
The OGH (AT) holds that a jurisdiction clause which is not an integrated component of the contract’s text, is only valid according to Article 17 (1) Brussels Convention, if reference to it is clearly made in the contract. The reference to the general terms and conditions which in addition contain a jurisdiction clause only suffices if the reference can be pursued and if the terms and conditions have been received by the other party to the contract, which is not the case here. A jurisdiction clause in small print and hidden outside the text of the contract in a footer of an offer is not sufficiently identifiable in order to constitute an offer for the conclusion of a jurisdiction agreement.