Oberster Gerichtshof, Beschluß vom 08/09/2005 8 Ob 83/05x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:RS0120404
Date: 2005-09-08
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82005AT0908(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, domiciled in Italy, produced, inter alia, linen goods for a German firm. The German firm ordered the necessary cloth for the manufacture from the plaintiff, seated in Austria. The cloth was delivered directly to the defendant and was also invoiced to the defendant pursuant to an agreement between the defendant and the German firm. Printed on the invoices to the defendant was a jurisdiction clause in favour of the courts of Feldkirch (AT) that was agreed upon by the plaintiff and the German firm. The plaintiff filed a complaint for payment of an outstanding payment against the defendant before the Bezirksgericht of Feldkirch. The defendant disputed the international jurisdiction of the court.  The Bezirksgericht sustained the complaint. However, on defendant's appeal to the Landesgericht of Feldkirch, the complaint was dismissed. Thereupon, the plaintiff filed an appeal to the OGH (AT).
The OGH finds the plaintiff's appeal to be without merit. Under Article 23 Brussels I Regulation, a jurisdiction agreement does indeed bind a successor to a right when the preceding party formed a valid agreement. The surety offered in the present case on the purchase price for the cloth does not involve any successors of that sort. Therefore, the defendant would have to have consented to the jurisdiction clause itself. In this case, the form requirements of Article 23(1)(a) are not fulfilled anyway, as printing the clause on the invoices does not suffice as being "in writing". A valid jurisdiction agreement therefore does not exist between the parties. Furthermore, regarding the place of performance as discussed in Article 5(1)(b), there is an abstract agreement as to the place of performance, but it does not fulfil the form requirements of Article 23 and is therefore not valid. The Austrian courts therefore do not have international jurisdiction.