Oberster Gerichtshof, Urteil vom 30/03/2001 7 Ob 320/00k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0115079
Date: 2001-03-30
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT0330(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff seated in Austria requests before an Austrian court, payment of the construction contract concerning the erection of several constructions for the defendant residing in Germany. As regard the jurisdiction, the plaintiff founds itself on a jurisdiction clause. A footnote separated by lines from the wording of the contract presenting in small characters information concerning the plaintiff and highlighting in capital letters “competent court Landesgericht Innsbruck” is contained on the first page of the order confirmation of the plaintiff signed by the defendant (as well as in all its invoices and letters). However no mention of a choice of forum agreement is found in the text itself. The court of first instance (AT) considered this as a valid choice of forum agreement within the meaning of Article 17(1) Brussels Convention, whereas the court of appeal did not consider it as clear enough.
The OGH (AT) holds on the one hand that the mutual consent as to the competent court shall be expressed clearly and explicitly and in the case where the jurisdiction clause is printed in the general trade conditions, the wording of the contract shall refer to the clause. In this case, the note concerning the competent court is not included in the wording of the contract and hidden in a footnote where it is not expected to be and thus not common in business relationships. The declaration of intention of the defendant does clearly not concern the information relating to the plaintiff in the footnote; furthermore possible general conditions included in it are not recognisable. Thus the common intention necessary according to Article 17(1) Brussels Convention is neither clear nor explicit so that a choice of forum agreement is not at hand.