Audiencia Provincial; 2018-01-17; ROJ: AAP B 66/2018
Decision by national courts in the field of European Union law — ECLI:ES:APB:2018:66A
Date: 2018-01-17
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Spain

82018ES0117(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a dispute between a Spanish sales company (hereinafter ‘the plaintiff’) and a manufacturer domiciled in Germany (hereinafter ‘the defendant’). The action had been filled in the Juzgado de Primera Instancia nº 5 de Mataró (hereinafter ‘the Court of First Instance in Mataró’). The defendant alleged the lack of jurisdiction of the Spanish courts invoking point 14.7 of the contract signed between the parties in 2010, by which jurisdiction over any disputes was conferred to the Swiss courts. Before the 2010 contract, the parties had an agreement from the year 2000 establishing the jurisdiction of the German courts. Following these allegations and pursuant to Article 23 of the new Lugano Convention (1), the Court of First Instance in Mataró declared its lack of jurisdiction to hear this case in favour of the Swiss courts.
The plaintiff appealed this decision alleging that it was the weaker party and therefore should be protected by the rules of jurisdiction more favourable to its interests than the general rules provide for, furthermore, that jurisdiction clause of the contract is null and void and therefore Article 5(1)(a) of the new Lugano Convention shall be applied, according to which a person may be sued in another State ‘in the courts for the place of performance of the obligation in question’. As the products were sold in Spain, the jurisdiction should belong to the Spanish courts.
The Audiencia Provincial de Barcelona (hereinafter ‘the Court of Appeal’) examined the evidence and held the agreement conferring jurisdiction as valid and applicable. The provisions protecting the weaker party to the contract could not be applied to this case, as the contract in question was not a consumer contract, but a contract of a commercial nature instead. Article 23 of new Lugano Convention was fully applicable, and the requirements set therein were satisfied, as the agreement conferring jurisdiction was in writing. In addition, it was not first time that the parties made such an agreement, as before the current jurisdiction clause conferring the jurisdiction to Swiss courts they had already agreed on the jurisdiction of the German courts. Therefore, the objection of lack of validity of the current agreement must be rejected. The Court of Appeal supported its opinion on Article 23 of the new Lugano Convention (previously being Article 17 of the Brussels Convention (2)) by the judgment of the Court of Justice of the European Union in Case C-159/97 (3).
The Court of Appeal rejected the appeal and confirmed the decision of the Court of First Instance in Mataró.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Lugano 2007.
(2) 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
(3) Judgment of the Court of Justice of 16 March 1999, Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA., C-159/97, ECLI:EU:C:1999:142.