Oberster Gerichtshof, Urteil vom 06/11/2008 6 Ob 229/08g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0060OB00229.08G.1106.000
Date: 2008-11-06
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT1106(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff filed claims against an Italian company in the Austrian court of competent jurisdiction for his domicile. The defendant contested the international jurisdiction of the court and pointed out that its general terms and conditions of business, which were written in Italian and included in the contract, contain a jurisdiction clause in favour of the Italian courts. The OLG of Vienna (AT) decided on the appeal in favour of the action. The defendant then turned to the OGH (AT) for appellate relief.
The OGH dismisses the appeal. It finds, that general terms and conditions of business written in a foreign language that the contractual partner does not speak can only be viewed as establishing an agreement when they have been referred to in the language used in negotiating and forming the contract, and the contractual partner has given an unqualified notice of acceptance. To the extent that the language used in negotiating and in forming the contract are not identical, the language used in negotiating is controlling in determining whether the T&C's are included. Contrary to the view of the defendant, a meeting of the minds of the parties does not automatically descend from observance of the form of Article 23 Brussels I Regulation. Whether the parties actually agreed to a choice of jurisdiction is controlling, as the form requirements of Article 23 Brussels I Regulation should guarantee that a jurisdiction agreement does not go unnoticed in becoming a part of the contract. In the present case, the negotiations were conducted in German, while the text of the order forms, which contained the jurisdiction clause, were drafted in Italian. As there was no effective notice regarding the T&C's, there was no meeting of the minds on the subject, so there is no jurisdiction agreement under Article 23 Brussels I Regulation.