An Austrian buyer order satellite receivers from a German seller. The seller delivered a sample receiver and issued an invoice, duly paid by the buyer, which made reference to the seller's standard terms printed on the reverse. The standard terms contained inter alia a choice of law clause in favor of German law together with an express exclusion of international Conventions on sales, a forum selection clause in favor of German courts and the determination of the place for all performances deriving from the contract (again in Germany). During the ensuing business relationship the seller delivered satellites and issued invoices which referred to the seller's standard terms and were all paid by the buyer. At a certain point the buyer commenced a legal action to obtain damages for lack of conformity of a part of the delivered receivers. The seller objected that Austrian courts did not have jurisdiction on the dispute.
The Court did not decide whether the forum selection clause in favor of German courts contained in the seller's standard terms had become part of the contract, since the jurisdiction of Austrian courts was to be denied in any case. Under Art. 5(1) of the EC Convention on Jurisdiction and Enforcement of Judgement in Civil and Commercial Matters (Lugano 1988), a person domiciled in a contracting State may be sued in the court of the place for performance of the disputed obligation. The parties had stipulated the clause frei Haus (franco domicile), according to which the goods had to be delivered at the buyer's place of business. However, in the Court's opinion such a clause in itself is not sufficient for determining jurisdiction and the parties' intention to this effect is to be ascertained case by case. |