Oberster Gerichtshof, Urteil vom 26/05/2011 9 Ob 19/11a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0090OB00019.11A.0526.000
Date: 2011-05-26
Subject matter: Lugano Convention
Origin: Austria

82011AT0526(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant sent a confirmation of an order which had been first discussed by telephone to the defendant per email. There was also a reference in the footer beneath the text to the "jurisdiction Villach" in much smaller font along with the identification number of the claimant and its bank account details. The defendant, which has its seat in Switzerland, sent a confirmation via email on the same day containing details of the ordered goods, but did not however mention the jurisdiction agreement. When the defendant did not pay for the goods, the claimant brought an action for payment of the purchase price before the Bezirksgericht of Villach (AT). It argued that the jurisdiction clause was legally valid. The defendant, however, challenged the international jurisdiction of the Austrian courts. The Bezirksgericht of Villach and, at second instance, the Landesgericht of Klagenfurt (AT) held that they lacked jurisdiction and dismissed the claim. The claimant lodged an appeal on a point of law to the OGH (AT).
The OGH dismisses the appeal. The conditions for the conclusion of a jurisdiction agreement must be narrowly interpreted in order to avoid their unnoticed inclusion into contracts. Heedless of the alternatives of form provided in Article 17(1) Lugano Convention 1988 to which reference is made, it must be ensured in any case that the contracting parties to a jurisdiction agreement have in fact agreed to it. Regarding the existence of an agreement between the parties on a jurisdiction agreement, the burden of proof is borne by the party which invokes it, in this case the claimant. The requirement of writing may be fulfilled in the case of a reference to terms and conditions which contain such a clause. However, the contractual text must expressly refer to these terms and conditions. As a result, fault cannot be found with the decision of the lower instance that an agreement on jurisdiction had not been proved.