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

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.