C-24/76

that the consensus between the parties general conditions of one of the

is in fact established. parties including a clause conferring 2. In the case of a clause conferring jurisdiction, the requirement of a

jurisdiction, which is included among writing under the first paragraph of

the general conditions of sale of one Article 17 of the Convention of 27 of the parties, printed on the back of September 1968 is satisfied only if the

the contract, the requirement of a reference is express and can therefore

writing under the first paragraph of be checked by a party exercising Article 17 of the Convention of 27 reasonable care.

between (Federal Court of Justice) in the action pending before that court

ESTASIS SALOTTI DI COLZANI AIMO E GIANMARIO COLZANI­ , having its registered office at Meda (Milan),

and

RÜWA POLSTEREIMASCHINEN GMBH­ , having its registered office at Cologne,

on the interpretation of the first paragraph of Article 17 of the Convention of

27 September 1968,

Facts

The facts of the case, the procedure and 3. The law of the Federal Republic of

the observations submitted pursuant to Germany applies to the whole of the

the Protocol of 3 June 1971 concerning legal relations between myself and my the interpretation by the Court of Justice customers including the creation

of the Convention of 27 September 1968 thereof.

on Jurisdiction and the Enforcement of On 31 October 1969, RÜWA and Judgments in Civil and Commercial Colzani entered into a contract in Milan. Matters may be summarized as follows: It was in German and was written on

that Colzani should be ordered to pay it These offers were written either in the sum of DM 100 000 with interest German or in Italian. They all begin with thereon at 5 % per annum from 1 the sentence: January 1972.

... subject to the general conditions of In its judgment of 9 April 1974, the

sale No 6904 overleaf ... I offer to Landgericht, Cologne, declared that it follows:.'

supply you as had no jurisdiction. It held that the

parties had not validly agreed that the courts of Cologne were to have RÜWA's general conditions of sale No jurisdiction. 6904 state at Article 13: 1. The place of performance in respect On 22 May 1974 RÜWA lodged an of any claims by either party arising appeal against that judgment with the out of this agreement or by reason of Oberlandesgericht (Higher Regional its conclusion is Cologne. Court), Cologne. 2. The same condition applies to

jurisdiction and also in the event of The latter, in a judgment of 18 actions in relation to bills of November 1974, overruled the judgment exchange. I am at all times entitled to of the Landgericht. It declared that the

took the view that the case raised submitted on 17 May 1976 by the

questions of interpretation of the first Commission of the European paragraph of Article 17 of the Communities, on 25 May by the

Convention of 27 September 1968 on undertaking Estasis Salotti di Colzani Jurisdiction and the Enforcement of Aimo e Gianmario Colzani, the appellant Judgments in Civil and Commercial in the main action, on 28 May by the

Matters, which provides: Government of the Federal Republic of

Germany, and on 1 June 1976 by the If the parties, one or more of whom is Government of the Italian Republic. domiciled in a Contracting State, have, by agreement in writing or by an oral Upon hearing the report of the Judge agreement confirmed in writing, agreed Rapporteur and the views of the

that a court or the courts of a Advocate-General, the Court decided to

preliminary ruling on the following Matters. It says that the purpose of the

questions: Convention is to bring about equality of 1. Does a clause conferring jurisdiction, treatment in the matter of the 'free which is included among general circulation'

of judgments as between conditions of sale printed on the back nationals of all the Member States, of a contract signed by both parties, without regard to their nationality. It is fulfil the requirement of a writing also intended to protect the rights of the

under the first paragraph of Article 17 defendant in proceedings pending in the of the Convention? State where judgment is to be delivered. 2. In particular, is the requirement of a Article 17 of the Convention contains a

writing under the first paragraph of uniform substantive rule as to how Article 17 of the Convention fulfilled jurisdiction is to be ascertained. It should

if the parties expressly refer in the be applied in a uniform way. Its content

ESTASIS SALOTTI v RÜWA

avoid disrupting commercial usage, while The purpose of the said requirement is to

at the same time the effects prevent the secret inclusion in contracts neutralizing of clauses conferring jurisdiction that of clauses conferring jurisdiction. might remain unnoticed in a contract. Therefore an agreement conferring Hence it is that such clauses are to be jurisdiction cannot validly be made by taken into consideration only where they mere reference to general conditions of

are the subject of an agreement, and this sale. It is absolutely necessary that

supposes the mutual consent of the express reference should be made to the parties. Furthermore, in the interests of clause conferring jurisdiction which

legal certainty, the agreement must be in appears amongst those conditions. It is

writing is not satisfied. requirement of a contained writing therein should be interpreted strictly. Therefore the first question referred to Therefore a mere reference to a written the Court should be answered in the offer, without any mention of the following terms: agreement conferring jurisdiction, cannot be considered to be a confirmation in The requirement of a writing laid down writing for the purposes of the first by the first paragraph of Article 17 of the paragraph of Article 17 of the Convention is not fulfilled when a clause Convention. conferring jurisdiction is contained in general conditions printed on the back of That provision facilitates business a document signed by one of the parties. transactions in that it contains a 'unilateral'

requirement of a writing, by (b) The mere fact that a clause one party alone. It is sufficient that an

conferring jurisdiction has been included oral agreement should be confirmed in in general conditions of sale and that the writing. In this way, a certain commercial

contracting party in whose favour that usage has been taken into account. Even clause has been incorporated refers to so, in order to ensure the protection

those conditions does not satisfy the provided by Article 17, an express

requirement of a writing contained in the reference is necessary on the part of the

whether the requirements as to form set of a specific definition of a writing out in the first paragraph of Article 17 of analagous to the definition contained in the Convention of 1968 be Articles 2 United Nations must (2) of the

interpreted in a uniform way for all the Convention of 10 June 1958, the States which signed the Convention, or requirements as to form laid down by the whether the Convention makes reference first paragraph of Article 17 of the

to the national law of the Contracting Convention in all material should, State for the determination of the be interpreted in a uniform particulars,

meaning and content of the requirement way for all the Contracting States. of a writing in a particular case.

According to the second paragraph of

The of Article 17 of the Article I of the Protocol annexed to the purpose

The fact that in certain circumstances the In regard to the first question, the Court question whether a consensus ad idem is really being asked whether the between the parties has arisen may reference to the general conditions of depend on the given national law does sale a clause containing conferring not prevent the consideration of jurisdiction must be in writing.

questions as to form without reference to

national law. On this point it should be Written agreements must show clearly noted thatwording of Article 17 of the that the parties intend that the general

the Convention is close to that of the conditions of sale and the clause

ESTASIS SALOTTI v RÜWA

conferring jurisdiction contained therein Accordingly, the two questions put by shall form part of the contract. The mere the Bundesgerichtshof should be fact that the general conditions of sale answered as follows: a clause containing conferring jurisdiction were reproduced on the back A clause conferring jurisdiction

general conditions of sale joined in general conditions of sale.

writing to the statements of the parties.

That reference should be considered to The requirement of a writing under the be sufficiently established when the first paragraph of Article 17 of the

general conditions of sale and the clause Convention is also fulfilled if the parties

conferring jurisdiction form an integral expressly refer in the contract to an offer part of the documents signed by the in writing in which reference was made parties or when, to the knowledge of to general conditions of sale including an both parties and in accordance with their agreement conferring jurisdiction and to intentions, they are printed on the back which these conditions of business were

of documents signed by them. In such a annexed.

agreement between them must be In that it allows the interested parties, in contained in a single document. certain circumstances, to agree that a

Therefore the parties can add to what is court or the courts of a Member State agreed between them by reference to shall have jurisdiction to settle any another document. At least in disputes 'which have arisen or which

circumstances where the document to may arise'

in connexion with a particular

which reference is made itself expressly legal relationship, and in requiring that

refers to the general conditions of sale the said agreement conferring joined to it, and where those conditions jurisdiction shall be an 'agreement in contain a clause conferring jurisdiction, a writing'

settle any dispute. The requirement of a 17 of the Convention of 27 September

writing arises not only from the need for 1968, must be considered to be valid

evidence, but also and primarily from the when it is contained in general

deliberate intention to make certain that conditions stipulated in advance by one

the contracting parties have specifically of the interested parties alone, subject to

and knowingly stipulated the clause the one condition that it must be

of the clauses which might be by way of a printed formula, it is disadvantageous to him at a later stage, impossible to determine with certainty such as the clause waiving the normal whether that clause must be given the

rules of jurisdiction. In the case of status of a stipulation of the contract. It is general conditions stipulated in advance otherwise only if the contract itself refers

by one of the interested parties alone, the to the general conditions of sale printed

written form required by the first on the back. In that case, it is established

paragraph of Article 17 should be that the clause conferring jurisdiction has understood as the express and specific been incorporated into the body of the approval of the clause waiving the contract by the two parties. normal rules of jurisdiction. (b) Taking into account the essential

Notwithstanding the above, specific objectives of Article 17 of the

conferring jurisdiction complies with Therefore the two questions set out in Article 17 of the Convention as regards the order making the reference should be form. answered in the negative. It should be made clear, first, that the waiver of the Article 17 does not require that the

normal rules of jurisdiction, which is clause conferring jurisdiction must be 'expressly'

allowed by the first paragraph of Article included in the contract. This

ESTASIS SALOTTI v RÜWA

may be inferred from the special including a clause conferring jurisdiction provision in favour of Luxembourg in the and to which those conditions of sale

second paragraph of Article I of the were annexed.

satisfied, except where the general October 1976. Colzani stressed the

conditions of sale have become an importance of the existence of a real

integral part of the content of the agreement between the parties as a

contract. necessary precondition to agreement any conferring jurisdiction for the purposes

The requirement of a writing under the of Article 17 of the Convention of 27 first paragraph of Article 17 of the September 1968. Convention is satisfied if the parties

expressly refer in the contract to a prior The Advocate General delivered his offer in writing in which reference was opinion at the hearing on 17 November made to general conditions of sale 1976.

questions concerning the interpretation of Article 17 of the said Convention.

2 It appears from the order making the reference that at the present stage the

action, which was brought before the Bundesgerichtshof by way of appeal on a point of law, concerns the jurisdiction of the Landgericht Köln to hear an

action brought by an undertaking established within the area of jurisdiction of

that court against an Italian undertaking whose registered office is at Meda

(Milan), for failure to perform a contract relating to the supply by the German to the Italian undertaking of machines for the manufacture of undertaking upholstered furniture.

courts of Cologne to settle any dispute which might arise between the parties

concerning the contract.

Although it is true that the text of the contract does not expressly mention

the said general conditions, it refers to previous offers made by the German undertaking which contained an express reference to the same general

conditions, which were also printed on the reverse of the papers in question.

4 In a judgment delivered on 9 April 1974, the Landgericht Köln, before which the matter was brought by the German undertaking, declared that it had no jurisdiction to hear the dispute.

the basis of Article 17 of the Convention.

In this connexion, the Bundesgerichtshof has referred two questions on the

interpretation of the first paragraph of that article.

On the interpretation of Article 17 of the Convention in general

6 The first paragraph of Article 17 of the Convention provides: 'If the parties,

one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement confirmed in writing, agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any

the Convention.

In view of the consequences that such an option may have on the position of

the parties to the action, the requirements set out in Article 17 governing the

validity of clauses conferring jurisdiction must be strictly construed.

'agreement'

By making such validity subject to the existence of an between the parties, Article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties,

included among general conditions of sale printed on the back of a contract signed by both parties, fulfils the requirement of a writing under the first paragraph of Article 17 of the Convention.

9 Taking into account what has been said above, it should be stated that the mere fact that a clause conferring jurisdiction is printed among the general conditions of one of the parties on the reverse of a contract drawn up on the

party does commercial paper of that not of itself satisfy the requirements of

Article 17, since no guarantee is thereby given that the other party has really consented to the clause the normal rules of jurisdiction. waiving

It is otherwise in the case where the text of the contract signed by both parties itself contains an express reference to general conditions including a clause conferring jurisdiction.

JUDGMENT OF 14. 12. 1976 — CASE 24/76

paragraph of Article 17 of the Convention is fulfilled if the parties expressly refer in the contract to a prior offer in writing in which reference was made to

general conditions of sale including a clause conferring jurisdiction.

Article 12 In principle, the requirement of a writing under the first paragraph of

17 is fulfilled if the parties have referred in the text of their contract to an

offer in which reference was expressly made to general conditions including a clause conferring jurisdiction.

This view of the matter, however, is valid only in the case of an express

would not yield any certainty that the clause conferring jurisdiction was in fact part of the subject-matter of the contract properly so-called.

13 Thus it should be answered that in the case of a contract concluded by reference to earlier offers, which were themselves made with reference to the

general conditions of one of the parties including a clause conferring jurisdiction, the requirement of a writing under the first paragraph of Article

17 of the Convention is satisfied only if the reference is express and can

therefore be checked by a party exercising reasonable care.

Costs

Bundesgerichtshof, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Bundesgerichtshof by order of 18 February 1976, hereby rules:

Where a clause conferring jurisdiction is included among the

general conditions of sale of one of the parties, printed on the

reference is express and can therefore be checked by a party reasonable care. exercising

Kutscher Donner Pescatore

Mertens de Wilmars Sørensen Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 14 December 1976.

A. Van Houtte H. Kutscher

Registrar President