Oberster Gerichtshof, Urteil vom 08/09/2009 1 Ob 146/09s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:0010OB00146.09S.0908.000
Date: 2009-09-08
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0908(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, filed claims for payment against the defendant, domiciled on the Canary Islands (ES), before the Bezirksgericht of Graz (AT). The defendant had, in the course of the standing business relationship between the parties, received invoices and delivery receipts from the plaintiff, on the reverse sides of which the general terms and conditions of business of the plaintiff were printed. These designated Graz as the court of jurisdiction and the place of performance for all disputes. The defendant challenged the jurisdiction of the Bezirksgericht of Graz on territorial grounds, which the court overruled. On appeal by the defendant, the appellate court dismissed the case. In response to the dismissal, the plaintiff filed an appeal to the OGH (AT).
The OGH finds that the appeal is inadmissible. The Graz courts do not have jurisdiction pursuant to Article 23(1) Brussels I Regulation. Article 23 requires an actual, mutual declaration of intent of the parties. The form of Article 23(1)(c) does not lift the requirement of an agreement of the parties. Such may be presumed if in the corresponding line of business a trade custom regarding jurisdiction agreements exists that the parties were aware of or should have been aware of. In the present case, it has not been established whether the printing of the general terms and conditions of business, which contained a jurisdiction clause, on the reverse sides of invoices and delivery receipts is common in the line of business of the parties. Therefore, this is not a situation controlled by Article 23(1)(c). The agreement here regarding place of performance is an abstract agreement with the sole purpose of appointing one, definite court of jurisdiction. It is to be evaluated from that view according to the form requirements of Article 23, as otherwise the Article could be too easily circumvented. Accordingly, the Graz courts do not have jurisdiction.