BGH; 2018-04-26; VII ZR 139/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:260418UVIIZR139.17.0
Date: 2018-04-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0426(52)_ENG_SUMJURE
JURE summary
JURE summary
A company domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against a company domiciled in Austria (hereinafter ‘the defendant’) seeking the payment of a remaining balance under an agreement regarding the relocation of a foaming machine.
The defendant acquired used machinery equipment in Germany which was dismantled, transported to the premises of the defendant and set up there again by the legal predecessor of the plaintiff.
According to the plaintiff, the court seised, the Landgericht Nürnberg-Fürth (hereinafter ‘the Court of First Instance’) held the international jurisdiction under an effectively concluded agreement on the place of jurisdiction. The defendant challenged the international jurisdiction of the Court of First Instance.
In its interim judgment, the Court of First Instance confirmed its local and international jurisdiction.
Based on the appeal of the defendant, the Oberlandesgericht Nürnberg (hereinafter ‘the Court of Appeal’) annulled the interim judgment of the Court of First Instance and dismissed the action for being inadmissible stating that under Article 25(1)(a) of the Brussels I Regulation (recast) (1), an agreement on the place of jurisdiction must be concluded in writing or verbally with a subsequent confirmation in writing. This was not the case in this dispute. The defendant accepted the offer, which the plaintiff had sent by email and which included the agreement on the place of jurisdiction, only verbally without a subsequent confirmation in writing.
The plaintiff lodged an admissible revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) against the decision of the Court of Appeal.
The judgment of the Court of Appeal did not withstand the examination of the Supreme Court.
The Court of Appeal was correct to conclude that a formally effective agreement on the place of jurisdiction under Article 25(1)(a) Brussels I Regulation (recast) had not been established.
On the other hand, with respect to the reasoning given by the Court of Appeal, the conclusion of a formally effective agreement on the place of jurisdiction under Article 25(1)(c) Brussels I Regulation (recast) could not be ruled out. The Court of Appeal made a procedural mistake not to take evidence in this matter. Within the examination of the international jurisdiction, which a court is obliged to conduct of its own motion, it was important to deal with the argument of the plaintiff that, in international trade and commerce conducted by entrepreneurs in the given field of business, a certain form of an agreement on the place of jurisdiction accords with a usage under Article 25(1)(c) Brussels I Regulation (recast).
The Supreme Court annulled the judgment of the Court of Appeal and referred the case back to the Court of Appeal for a new hearing and decision.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.