Oberster Gerichtshof, Urteil vom 25/09/2001 4 Ob 199/01w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0115733
Date: 2001-09-25
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT0925(05)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, an Austrian company, offered by mail a contract concerning planning performances, to a company domiciled in Germany. The wording of the offer itself did not mention any jurisdiction agreement. However, it was written on the business paper of the plaintiff which contained on each page two lines of footnotes with indications concerning the company and at the end the note “jurisdiction: Vienna”. The defendant on the basis of this offer commissioned the plaintiff of planning works. The plaintiff now claims the agreed price of the work invoking the jurisdiction agreed in writing within the meaning of Article 17 (1) Brussels Convention. The court of first instance considers itself incompetent on the ground that the jurisdiction clause on the business paper is too inconspicuous for the defendant to be aware of it. This was affirmed by the court of appeal.
The OGH (AT) also considers on the basis of the visual form of the jurisdiction clause outside the wording of the offer letter of the plaintiff, that an express reference on the divergence from the general provisions on jurisdiction is necessary. Without the latter, it cannot be required from the addressee of the declaration by application of a normal diligence that he recognises such a hidden jurisdiction clause as being part of the contract’s offer. Thus, a mutual consent on the legal competence pursuant to Article 17(1) Brussels Convention cannot be clearly deduced from the consent of the defendant to the contract’s offer.