Oberster Gerichtshof, Urteil vom 21/06/2011 1 Ob 98/11k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0010OB00098.11K.0621.000
Date: 2011-06-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0621(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are in a dispute as to whether they concluded a jurisdiction agreement in favour of the courts in Vienna (AT). The Austrian claimant had sent the defendant, whose seat is in Serbia, a contract offer containing six pages of text per email. According to the findings of the court the actual offer of the claimant was contained on the first four pages of the text. It contained details regarding the contract, but did not, however, contain any reference to the application of standard terms and conditions or a jurisdiction agreement. The place for the signature of the business party and the date of acceptance was located on page four. Two pages followed containing standard terms and conditions, including a jurisdiction clause, in smaller font. An action brought by the claimant in Vienna was dismissed at first and second instance due to a lack of international jurisdiction on the grounds that a jurisdiction agreement was not validly concluded. The claimant lodged an appeal on a point of law to the OGH (AT).
The OGH dismisses the appeal. Article 23 Brussels I Regulation must be narrowly interpreted. In order for a jurisdiction agreement contained in standard terms and conditions to be incorporated into a contract, the contract text proper must expressly make reference to its incorporation into the contract. Only attaching standard terms and conditions without such a reference does not, however, suffice. In the current case the six pages of the offer text were numbered. However, the interpretation of the appellate court that in view of the appearance of the e-mail the pages following the place for written acceptance of the offer in a smaller font were not incorporated into the offer cannot be criticised. Since the four page offer text did not contain a reference to the attached standard terms and conditions in which the jurisdiction clause was included, this was not validly agreed upon by the parties.