## Facts

- A German manufacturer (Ossberger) supplied water turbines for several years to a French distributor (Établissements Rohr), which resold the turbines in France under its own name.
- The seller relied on general conditions of sale containing a clause conferring jurisdiction on courts in the Federal Republic of Germany.
- The seller sued in Germany for unpaid invoices totaling DM 120,216 plus interest.
- The buyer appeared to contest territorial jurisdiction but did not plead to the merits; the German trial court rejected the objection and entered judgment for the seller.
- The buyer appealed in Germany, arguing that under the Brussels Convention it should be sued in France and that pleading on the merits would amount to submission to German jurisdiction; the appellate court upheld jurisdiction based on the jurisdiction clause.
- The seller sought enforcement of the German judgment in France; enforcement was granted, and the buyer appealed to a French appellate court.
- The French appellate court stayed the enforcement appeal and referred a question on interpretation of Brussels Convention Article 18 (submission to jurisdiction by appearance).

## Issues

1. Whether Brussels Convention Article 18 permits a defendant to contest jurisdiction and, in the alternative, present a defense on the merits without being deemed to have submitted to the seised court’s jurisdiction.

## Decision

- The Court of Justice answered yes.
- Article 18 allows a defendant to contest jurisdiction while simultaneously advancing an alternative defense on the substance.
- Such an appearance does not deprive the defendant of the right to maintain the objection that the court lacks jurisdiction.
- Costs between the parties to the national litigation were left to the national court, consistent with preliminary-ruling practice.

## Legal Principles

- Under Brussels Convention Article 18, tacit submission to jurisdiction through appearance is excluded when the defendant’s appearance is for the purpose of contesting jurisdiction.
- A defendant may plead on the merits in the alternative as a procedural safeguard, without that step being treated as voluntary submission to the court’s jurisdiction.
- Implied submission should not be inferred from defensive procedural conduct in a manner that would dilute the Convention’s jurisdictional protections, including the domicile rule (Article 2) and express jurisdiction agreements (Article 17).

## Conclusion

The court held that a defendant who appears to contest jurisdiction may also present an alternative merits defense without thereby submitting to the seised court’s jurisdiction under Brussels Convention Article 18.


Établissements Rohr S.A. v. Ossberger, Case C-27/81, 1981 E.C.R. 2431 (C.J.E.C. 1981)