Oberster Gerichtshof, Urteil vom 22/01/2009 2 Ob 159/08h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0124498
Date: 2009-01-22
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0122(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are business people. At dispute is the jurisdiction of the court seised by the plaintiff, the Bezirksgericht of Wels (AT). The plaintiff relies on a jurisdiction clause in an appendix titled "Delivery and Installation Terms" contained in a contract offer extended from her to the defendant and signed by the defendant. One offer extended by the plaintiff to the defendant, signed by the latter, contained a clearly legible reference above the signature to the "Delivery and Installation Terms". The Bezirksgericht of Wels therefore considered the written form requirements as having been fulfilled. The Landesgericht of Wels (AT) took appellate jurisdiction over the case, but then remanded the case to the Bezirksgericht to collect evidence as to whether the terms were actually provided alongside the offer. The defendant appealed to the OGH (AT). The defendant argued that a written embodiment in an appendix outside of the text of the contract is not sufficient.
The OGH takes the proceedings, in which local jurisdiction is at dispute, as a starting point for an underlying discussion of the principles according to which a jurisdiction clause located outside the actual text of a contract can be included in the contract. It notes first that Austrian law permits as between two business people that a jurisdiction clause has fulfilled the written form/documentary proof requirements when the appendix wherein it is located is referred to explicitly in the text of the contract. This conforms to the principles of Article 23 Brussels I Regulation. Under the European rules of jurisdiction, the written form requirement has the goal of preventing the surreptitious addition of jurisdiction clauses into the contract and of protecting the other party from unexpected jurisdictions. Jurisdiction clauses are therefore indeed to be interpreted narrowly pursuant to Article 23. It is nonetheless common business practice to avoid inconsistent, exaggerated formalism.