OLG Köln; 2022-05-20; 8 U 52/21
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2022:0520.8U52.21.00
Date: 2022-05-20
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0520(51)_ENG_SUMJURE
JURE summary
JURE summary
The dispute dealt with by the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) concerned the topic of international jurisdiction and an agreed place of jurisdiction.
The subject-matter of the dispute between the parties was the payment for ceramic tiles. The plaintiff, domiciled in Germany, was a manufacturer of tiles. Defendant 1 and defendant 2 (hereinafter the ‘defendants’) were construction companies domiciled in Portugal and France. Defendant 1 was assigned with the facade cladding for a construction project in A (France).
The parties selected the tile pattern ‘glossy’, which they confirmed in writing. The order confirmation from 14 September 2018 included the same article number but with the description ‘matt‘. On 23 November, the plaintiff and the defendants signed an agreement in French. Article 5 of the agreement contained the following provision:
‘La présente délégation est régie exclusivement par le Droit français. Les litiges seront soumis au Tribunal de Commerce de A.’
The parties did not agree on the exact translation of this provision.
After the defendants paid a down payment of EUR 100 000 to the plaintiff, the plaintiff made a partial delivery of 27 pallets of tiles to the construction site in A. Due to their matt finish, the tiles were not used. The plaintiff refused to deliver a substitute delivery. Defendant 1 refused to accept and pay for the tiles and made a new order for tiles with a glossy finish with the plaintiff.
In his action, the plaintiff requested that the defendants be ordered to pay EUR 556 489.38 to the plaintiff as joint and several debtors. The defendants applied for the action to be dismissed.
The Landgericht Bonn (hereinafter ‘the Court of First Instance’) dismissed the action, citing its inadmissibility due to the lack of international jurisdiction on the part of the Court of First Instance. The defendant pursued its claim further by lodging an appeal with the Court of Appeal, arguing that Article 5 of the agreement from 23 November 2018 contained no effective agreement on the place of jurisdiction.
The Court of Appeal stated that the Court of First Instance was correct in dismissing the action. Under Article 7(1)(a) and (b) of the Brussels I Regulation (recast), the place of performance was in A. In addition, an effective agreement regarding the jurisdiction of French courts had been made in Article 5 of the agreement from 23 November 2018.
The Court of Appeal dismissed the appeal of the plaintiff against the decision of the Court of First Instance.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).