Audiencia Provincial Barcelona, sentencia del 15/03/2001 1240/1999 Curtidos Gregori, S.A. / Bradford Hide Company Ltd., Dee Baylis Ltd.
Decision by national courts in the field of European Union law — ECLI:ES:APB:2001:3044
Date: 2001-03-15
Subject matter: Brussels Convention of 27 September 1968
Origin: Spain

82001ES0315(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A company, with its seat in Spain, brought an action against two companies, which had their seats in the United Kingdom, before the Juzgado de Primera Instancia No. 5 of Granollers (ES). The plaintiff sought a declaration that it could reduce the purchase price of several contracts agreed with the defendants as well as the reimbursement of a certain sum of money. The defendants contested the claims and challenged the jurisdiction of the Spanish Courts with reference to Article 5(1) Brussels Convention. The Court found in favour of the challenge to its jurisdiction and held that the English courts were competent as the place of performance is in England. The plaintiff appealed to the Audiencia Provincial of Barcelona (ES) and argued that the challenge as to international jurisdiction had not been properly raised and thus an implicit choice of forum had been agreed between the parties.
The Audiencia Provincial (ES) grants the appeal and refers to Article 18 Brussels Convention. In order for the entry of an appearance in the proceedings not to found jurisdiction, the defendant must only enter an appearance in order to contest the jurisdiction of the court and moreover in the form provided for in the national law. The Court holds that the ECJ permits the entry of a substantive defence along with a contest to jurisdiction, if a prior declaration of the contest is not permitted by the domestic procedural law. The defendant would had to have only contested the jurisdiction as, pursuant to Spanish procedural law, any further participation in the court proceedings creates a presumption of an implied choice of forum agreement. Thus the Audiencia Provincial of Barcelona allows the appeal, confirms the jurisdiction of the Spanish courts and overrules the judgment of the court of first instance.