By letter of 18 September 1969 the undertaking RÜWA Polstereimaschinen GmbH (hereinafter referred to as: RÜWA), having its registered office in Cologne, sent to the undertaking Estasis Salotti di Colzani Aimo e Gianmario Colzani (hereinafter referred to as Colzani) seven written offers, dated 11 September 1969, relating to the supply of machines for the manufacture of upholstered furniture.

These offers were written either in German or in Italian. They all begin with the sentence:

RÜWA's general conditions of sale No 6904 state at Article 13:

On 31 October 1969, RÜWA and Colzani entered into a contract in Milan. It was in German and was written on commercial paper bearing RÜWA's letterhead, on the back of which RÜWA's general conditions of sale were printed. By that contract Colzani gave RÜWA the order to supply the machines offered for sale pursuant to the letter of 18 September 1969.

The contract was not performed, Colzani having refused to take delivery of the machines.

On 18 January 1973, RÜWA brought an action before the Landgericht (Regional Court), Cologne, for damages against Colzani. In particular, RÜWA claimed that Colzani should be ordered to pay it the sum of DM 100000 with interest thereon at 5 % per annum from 1 January 1972.

In its judgment of 9 April 1974, the Landgericht, Cologne, declared that it had no jurisdiction. It held that the parties had not validly agreed that the courts of Cologne were to have jurisdiction.

On 22 May 1974 RÜWA lodged an appeal against that judgment with the Oberlandesgericht (Higher Regional Court), Cologne.

The latter, in a judgment of 18 November 1974, overruled the judgment of the Landgericht. It declared that the Landgericht had jurisdiction and referred the case back to it.

Colzani appealed to the Bundesgerichtshof (Federal Court of Justice) on a point of law. The VIIIth civil Senate of the Bundesgerichtshof took the view that the case raised questions of interpretation of the first paragraph of Article 17 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which 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 disputes which have arisen or which may arise in connexion with a particular legal relationship, that court or those courts shall have exclusive jurisdiction.

Accordingly, by order of 18 February 1976 it decided, pursuant to Article 2 (1) and Article 3 (1) of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 to suspend judgment until the Court of Justice has given a preliminary ruling on the following questions:

The order of the Bundesgerichtshof was received at the Court Registry on 11 March 1976.

Pursuant to Article 5 (1) of the Protocol of 3 June 1971 and Article 20 of the Statute of the Court of Justice of the EEC, written observations were submitted on 17 May 1976 by the Commission of the European Communities, on 25 May by the undertaking Estasis Salotti di Colzani Aimo e Gianmario Colzani, the appellant in the main action, on 28 May by the Government of the Federal Republic of Germany, and on 1 June 1976 by the Government of the Italian Republic.

Upon hearing the report of the Judge Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

The undertaking Estasis Salotti di Colzani Aimo e Gianmario Colzani, the appellant in the main action, reminds the Court of the origins of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It says that the purpose of the Convention is to bring about equality of treatment in the matter of the free circulation of judgments as between nationals of all the Member States, without regard to their nationality. It is also intended to protect the rights of the defendant in proceedings pending in the State where judgment is to be delivered. Article 17 of the Convention contains a uniform substantive rule as to how jurisdiction is to be ascertained. It should be applied in a uniform way. Its content is identical to that of the rule contained in the Convention between Germany and Belgium concerning enforcement, which itself is based on Article 2 of the Hague Convention of 15 April 1958 on the jurisdiction of the selected forum in international sales of goods.

The Government of the Federal Republic of Germany takes the view that the first task of the Court of Justice is to decide whether the requirements as to form set out in the first paragraph of Article 17 of the Convention of 1968 must be interpreted in a uniform way for all the States which signed the Convention, or whether the Convention makes reference to the national law of the Contracting State for the determination of the meaning and content of the requirement of a writing in a particular case.

The purpose of Article 17 of the Convention is to ensure legal certainty. To this end, express provision must be made as to the form which the agreement conferring jurisdiction must take, without however, lapsing into excessive formalism, which would be irreconcilable with commercial practice. Accordingly, Article 17 should, as regards the form of agreements conferring jurisdiction, be understood as a uniform rule. National law cannot determine whether, in a particular case, there is or is not an agreement in writing. Considerable differences between the national laws exist on points of detail. The fact that in certain circumstances the question whether a consensus ad idem between the parties has arisen may depend on the given national law does not prevent the consideration of questions as to form without reference to national law. On this point it should be noted that the wording of Article 17 of the Convention is close to that of the first paragraph of Article 2 of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Speaking generally, in interpreting the Convention, it is necessary, in order that it may be applied in a uniform way throughout the Community, to attempt to arrive at a uniform interpretation of it which does not refer to national law, whenever reference to national law is not absolutely necessary. Moreover, the Convention does not contain any clear provision as to which national law should be applied here.

Therefore, notwithstanding the absence of a specific definition of a writing analagous to the definition contained in Articles 2 (2) of the United Nations Convention of 10 June 1958, the requirements as to form laid down by the first paragraph of Article 17 of the Convention should, in all material particulars, be interpreted in a uniform way for all the Contracting States.

According to the second paragraph of Article I of the Protocol annexed to the Convention, the effects of an agreement conferring jurisdiction have to be expressly and specifically agreed only with respect to persons domiciled in Luxembourg. Accordingly, as regards Article 17 of the Convention, a reference to general conditions of sale containing a clause conferring jurisdiction is in principle sufficient. In any event, the requirement in Article 17 is satisfied when the written agreement refers to general conditions of sale containing a clause conferring jurisdiction and when those conditions are joined to the agreement.

In regard to the first question, the Court is really being asked whether the reference to the general conditions of sale containing a clause conferring jurisdiction must be in writing.

Written agreements must show clearly that the parties intend that the general conditions of sale and the clause conferring jurisdiction contained therein shall form part of the contract. The mere fact that the general conditions of sale containing a clause conferring jurisdiction were reproduced on the back of the agreement expressly concluded between the parties would not suffice, in view of the preventive function of the requirement of a writing. The decisive question is rather whether there is any evidence that the agreement made between the parties also covers the general conditions of sale joined in writing to the statements of the parties. That reference should be considered to be sufficiently established when the general conditions of sale and the clause conferring jurisdiction form an integral part of the documents signed by the parties or when, to the knowledge of both parties and in accordance with their intentions, they are printed on the back of documents signed by them. In such a case, it would be somewhat formalistic to require that the document signed by the parties should specifically refer to the clause conferring jurisdiction appearing on the back.

Contrary to certain national provisions concerning written form, the first paragraph of Article 17 does not require that the signature of both parties must appear on one and the same document, nor does it require that every written agreement between them must be contained in a single document. Therefore the parties can add to what is agreed between them by reference to another document. At least in circumstances where the document to which reference is made itself expressly refers to the general conditions of sale joined to it, and where those conditions contain a clause conferring jurisdiction, a reference to another document known to both parties, within the meaning of the second question referred to the Court, must be considered sufficient This is so a fortiori when the general conditions of sale to which reference is made in the offer are also printed on the back of the contract concluded between the parties.

Accordingly, the two questions put by the Bundesgerichtshof should be answered as follows:

A clause conferring jurisdiction contained in the 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 when the parties have made a sufficiently clear reference to those general conditions of sale.

The requirement of a writing under the first paragraph of Article 17 of the Convention is also fulfilled if the parties expressly refer in the contract to an offer in writing in which reference was made to general conditions of sale including an agreement conferring jurisdiction and to which these conditions of business were annexed.

The Government of the Italian Republic is of the opinion that, for the purpose of answering the questions referred, some useful information may be gleaned from the criteria adopted in this field by the laws of the various Member States. Nevertheless, the surest way to a correct interpretation of a provision is an understanding of the rule on which it is based.

In that it allows the interested parties, in certain circumstances, to agree that a court or the courts of a Member State shall have jurisdiction to settle any disputes which have arisen or which may arise in connexion with a particular legal relationship, and in requiring that the said agreement conferring jurisdiction shall be an agreement in writing or an oral agreement confirmed in writing, the first paragraph of Article 17 of the Convention of 1968 is intended to ensure that, by means of the written form, the contracting parties are acting in full knowledge of the facts, especially in relation to the party who accepts the stipulation of the other party concerning which court shall have jurisdiction to settle any dispute. The requirement of a writing arises not only from the need for evidence, but also and primarily from the deliberate intention to make certain that the contracting parties have specifically and knowingly stipulated the clause whereby the normal rules of jurisdiction are waived.

The main action makes it clear that it is necessary to prevent the party who has laid down the general conditions of the contract in advance, and in particular the clause conferring jurisdiction, from being able to abuse the good faith of the other contracting party, who is generally weaker, by a general reference to clauses of which the latter may not actually have had knowledge. Such actual knowledge can only be guaranteed by requiring that the clause whereby the normal rules of jurisdiction are waived must be approved expressly and specifically. It is necessary to ensure that the weaker party to the contract, in the case of standard form contracts printed in advance by the other contracting party, has actual knowledge of the clauses which might be disadvantageous to him at a later stage, such as the clause waiving the normal rules of jurisdiction. In the case of general conditions stipulated in advance by one of the interested parties alone, the written form required by the first paragraph of Article 17 should be understood as the express and specific approval of the clause waiving the normal rules of jurisdiction.

Notwithstanding the above, specific approval of such a clause is not necessary when the general conditions are stipulated in advance by a public authority, that is to say by a body organically attuned to the dictates of the public good, of impartiality and of justice, which are inherent in its nature.

Therefore the two questions set out in the order making the reference should be answered in the negative. It should be made clear, first, that the waiver of the normal rules of jurisdiction, which is allowed by the first paragraph of Article 17 of the Convention of 27 September 1968, must be considered to be valid when it is contained in general conditions stipulated in advance by one of the interested parties alone, subject to the one condition that it must be specifically approved in writing by the other contracting party. Secondly, it should be stated that the only circumstance in which this specific approval is not required is where general conditions are stipulated in advance by a public authority.

The Commission of the European Communities points out that there are two purposes behind Article 17 of the Convention of 27 September 1968: to ensure legal certainty and to avoid excessive formalism.

Article 17 does not require that the clause conferring jurisdiction must be expressly included in the contract. This may be inferred from the special provision in favour of Luxembourg in the second paragraph of Article I of the Protocol annexed to the Convention.

Therefore the questions of the Bundesgerichtshof should be answered as follows:

When a clause conferring jurisdiction is contained in the general conditions of sale printed on the back of a contract signed by both parties, the requirement of a writing under the first paragraph of Article 17 of the Convention is not satisfied, except where the general conditions of sale have become an integral part of the content of the contract.

The requirement of a writing under the first paragraph of Article 17 of the Convention is satisfied 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 and to which those conditions of sale were annexed.

The undertaking Estasis Salotti di Colzani Aimo e Gianmario Colzani, the appellant in the main action, represented by Giuseppe Celona, Advocate at Milan, and the Commission of the European Communities, represented by its Legal Adviser, Rolf Wägenbaur, submitted oral observations at the hearing on 13 October 1976. Colzani stressed the importance of the existence of a real agreement between the parties as a necessary precondition to any agreement conferring jurisdiction for the purposes of Article 17 of the Convention of 27 September 1968.

The Advocate General delivered his opinion at the hearing on 17 November 1976.