Oberster Gerichtshof, Urteil vom 25/02/2009 3 Ob 24/09i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0030OB00024.09I.0225.000
Date: 2009-02-25
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0225(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a company with its seat in Austria. The defendant has its seat in Germany. The defendant supplied aluminium coverings for roof and wall panels to the plaintiff during the course of ongoing business relations. The plaintiff brought an action against the defendant for damages before the Landesgericht of Innsbruck (AT). The plaintiff based jurisdiction on Article 5(1) Brussels I Regulation. The roof panels which were supplied by the defendant for a construction project were delivered to the plaintiff's construction site in Austria. The defendant challenged the international jurisdiction of the Austrian courts. The defendant referred specifically to its general supply conditions stamped on the order confirmations, and the jurisdiction clause within those general supply conditions, which specified the courts of Koblenz (DE) as having jurisdiction. While the Landesgericht sustained the objection to jurisdiction, the Oberlandesgericht of Innsbruck (AT) ruled there was no legally binding jurisdiction agreement. As a result, the plaintiff is not hindered from bringing a claim before the court of the place of performance of the obligation. The defendant appealed the decision to the OGH (AT).
The OGH confirms the decision of the appellate court and dismisses the appeal. The requirements for the conclusion of a jurisdiction agreement in Article 23 are to be narrowly interpreted. In particular, the mutual consent of the contracting parties concerning the establishment of jurisdiction must be clearly and unequivocally expressed. In this regard, the defendant bears the evidentiary burden of proof and the substantive burden of proof. The judgment of the appellate court, which ruled that neither the written formal requirements in Article 23(1)(a) were satisfied, nor was a form which accords with the practices which the parties have established between themselves in terms of Article 23 1)(b) successfully demonstrated by the defendant, cannot be faulted.