Oberster Gerichtshof, Urteil vom 31/05/2006 7 Ob 114/06z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:0070OB00114.06Z.0531.000
Date: 2006-05-31
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT0531(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff having its seat in Austria and the defendant having its seat in Germany are forwarding agents. The plaintiff claims a right for the payment of a contract of carriage against the defendant before an Austrian court. Reference was made during the contract negotiations to the German Forwarders’ standard Terms and Conditions (ADSp) and to the Austrian Forwarders’ standard Terms and Conditions (AÖSp) which are in this regard identical and according to which the court competent to determine all disputes arising from such a contract is situated at the place of establishment of the carrier to whom the order is addressed. The order of carriage of the defendant addressed to the plaintiff contained a clause “place of performance and competent court are situated in Regensburg (DE)”. The confirmation of the order of the plaintiff referred again to the AÖSp. The Austrian court rejected the claim on the basis of the lack of international jurisdiction. Thus the plaintiff appealed.
The Oberste Gerichtshof (AT) dismisses the appeal. It holds that the lower courts have rightly negated the international jurisdiction. A prorogation of jurisdiction in the sense of Article 23(1) Brussels I Regulation can also be concluded by way of coinciding standard commercial terms and conditions. However, in this case, due to the differing regulation within the order of carriage, no corresponding declarations of intention as regards the jurisdiction are at hand. Due to this express derogation, it cannot be concluded that the defendant had “in any case” accepted the jurisdiction according to the regulation of the ADSp and AÖSp, which are in this regard identical. The competent court is therefore to be determined according to the legal provisions, thus according to Article 2 Brussels I Regulation. Accordingly, the German courts are competent.