LG Hamburg; 2017-04-07; 418 HKO 4/16, 309 O 291/11
Decision by national courts in the field of European Union law — ECLI:DE:LGHH:2017:0407.418HKO4.16.00
Date: 2017-04-07
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0407(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned a dispute between the insolvency administrator of a company, ‘A’ (hereinafter ‘the plaintiff’) and an Egyptian company, ‘B’ (hereinafter ‘the defendant’), regarding claims for the payment of the purchase price for deliveries of goods.
The defendant had a business relationship with a company, ‘C’. The invoices sent by the company, ‘C’ to the defendant included the statement that the invoices were to be paid not by C but by the A company instead. In addition, the invoices and the documents called ‘proforma invoice’ included the following clauses written in significantly smaller letters: ‘Hamburg is the place of jurisdiction. Our contracts are subject to German law’.
First, the plaintiff called upon the defendant to pay for the delivered goods by a letter and an email. Subsequently, the plaintiff filed an action with the Landgericht Hamburg (hereinafter ‘the Court of First Instance’).  The Court of First Instance tried to serve the action under HZÜ (1) to the defendant in Egypt. Despite several efforts, the documents were always returned without any comments.
After stating that service abroad was not possible, the Court of First Instance ordered the service of the action to be made by publication under Article 185(3) ZPO (2) and announced the start of the preliminary proceedings conducted in writing. The Court of First Instance issued a default judgment against the defendant and ordered the defendant to pay the requested amount to the plaintiff.
The defendant objected to the default judgment. Subsequently, the dispute was transferred under Article 98(1) GVG (3) from the chamber for civil matters to the chamber for commercial matters.
The Court of First Instance found the objection against the default judgment admissible but cited its own lack of international jurisdiction due to the Egyptian domicile of the defendant. According to the Court of First Instance, the parties had not concluded an effective agreement on the place of jurisdiction. The clause written in small letters contained on the proforma invoices had not met the requirements under Article 23(1)(1) of the Brussels I Regulation (4). For the agreement on the place of jurisdiction to be effective, these requirements must be strictly adhered to as their aim is to ensure that the parties had reached such an agreement beyond any doubts. It is necessary that the parties genuinely intend to apply the clause and manifest their will in a clear and explicit manner. This, however, could not be assumed in the dispute.
The default judgment was therefore cancelled, and the action was dismissed for being inadmissible.
(1) Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
(2) Zivilprozessordnung (Code of Civil Procedure).
(3) Gerichtsverfassungsgesetz (Courts Constitution Act).
(4) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.