Etablissements Rohr S.A. v. Dina Ossberger

Dina Ossberger, trading as Firma Ossberger Turbinenfabrik (Ossberger) (plaintiff), a German company based in Germany, was a supplier of water turbines to Etablissements Rohr Societe Anonyme (Rohr) (defendant), a French company operating in France. Rohr sold the turbines to its customers in France. The general conditions of sale by Ossberger to Rohr included a forum-selection clause requiring any disputes to be subject to jurisdiction in the German courts. A disagreement arose, and Ossberger sued Rohr in Germany. Rohr disputed jurisdiction under the Convention of September 27, 1968, on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the convention), contending that it could only be sued in France. However, Rohr raised no defense on the merits. The German court rejected the jurisdictional challenge and entered judgment against Rohr on December 15, 1978. Rohr appealed, claiming it would have waived its jurisdictional defense if it had also asserted a defense on the merits. The German appellate court rejected the appeal, finding the forum-selection clause in the contract enforceable under the convention and Rohr’s failure to raise a substantive defense unexcused. Ossberger then sought to enforce the judgment in France. The French court agreed to enforce the German judgment, and Rohr again appealed, asserting the same arguments to the French appellate courts. The French appellate court stayed the proceedings on November 26, 1980, and submitted a question to the European Union Court of Justice on whether the convention prohibited Rohr from raising both the substantive and jurisdictional defenses simultaneously.