Germany, Federal High Court, 25 January 2017 VIII ZR 257/15

Identification of the case

• Lugano-Übk II Art. 15, Art. 23 (1)

Summary of the case

A Swiss vendor sold a riding horse to a German buyer. The latter claimed a defect of the horse and submitted a court application for the repayment of the purchase price at a German court. The sales contract, however, contains a jurisdiction clause according to which Swiss courts are responsible for resolving disputes. Both copies of the contract are only signed by the plaintiff. Albeit denied in the first instances, the plaintiff continues to claim the responsibility of German courts for the dispute as the lacking signature of the Swiss vendor means that the form requirements are not fulfilled.

• Civil judicial enforcement

Restauration of each party to its pre-sales contract position, Payment of damages

The Federal Court of Justice affirms the formal validity of the contract and the jurisdiction clause under Art. 23(1) Lugano Convention. Regarding the requirement of written form, the Court deemed it sufficient to have a written contract when the agreement of the parties is apparent from the context. The Court reasons that the purpose of the requirement of written form is to ensure the identity of the parties and to verify the content of the agreement. Thus, to avoid ‘unnoticed’ jurisdiction clauses. To achieve this purpose, it is indispensable to have a contract in written form while the signature of the parties is not. The Court further deems that the form requirements are an acte clair, necessitating thus no preliminary reference.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-322/14, Jaouad El Majdoub

To confirm the interpretation of the Federal High Court

Additional notes on the decision

Academics criticise this decision for creating legal uncertainty, increasing the difficulty of proof and lowering the standard of protection regarding choice of law clauses. Technically, the Court’s interpretation only refers to art. 23 of the Lugano Convention and, thus, might have a very limited practical impact. However, de facto this interpretation also applies to the identically worded art. 25 (1) of the Brussels I Regulation. Within a systematic interpretation, this interpretation would then possibly be relevant to all European regulations regarding international civil procedural law.