| CONFLICT OF LAWS — Jurisdiction under European Convention — Place of performance of contractual obligation in sale of goods — Place where goods delivered — Applicability in case of delivery to several places in one contracting state — Regulation (EC) No 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters, art 5(1)(b)
Color Drack GmbH v Lexx International Vertriebs GmbH (Case C-386/05)
ECJ: President of Chamber Lenaerts, Judges Juhász, Silva de Lapuerta, Arestis and von Danwitz: 3 May 2007
Where under a contract goods were delivered to several places in the same EC member state, it was the place of principal delivery in that state, determined on the basis of economic criteria, that had jurisdiction in disputes on the contract.
The Fourth Chamber of the Court of Justice of the European Communities so held inter alia on a reference for a preliminary ruling by the Oberster Gerichtshof, Austria.
Art 5 of Regulation 44/2001 provides: “A person domiciled in a member state may, in another member state, be sued: (1)(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; (b) for the purpose of this provision … the place of performance of the obligation in question shall be:—[first indent] in the case of the sale of goods, the place in a member state where, under the contract, the goods were delivered … (c) if sup-paragraph (b) does not apply then sub-paragraph (a) applies …”
By a contract between the claimant, established in Austria, and the defendant, established in Nuremberg, Germany, the claimant purchased sunglasses from the defendant which the defendant undertook to deliver to customers of the claimant in various places in Austria. In an action brought in Austria over the defendant’s obligation under the contract to reimburse the price of unsold goods returned by the claimant, the court of first instance determined inter alia that it had jurisdiction by virtue of the first indent of art 5(1)(b) of Regulation 44/2001, but on appeal the appeal court reversed that decision on the ground that that provision envisaged a single place of supply and therefore was not applicable where there were several places of supply in one country, so that, by art 5(1)(c), sub-para (a) applied and the proper forum was Nuremberg. On further appeal, the Oberster Gerichtshof sought a preliminary ruling from the European Court for the resolution of the matter.
THE COURT, emphasising that it was not dealing with a situation where there were several places of delivery in a number of member states, said that a ruling that art 5(1)(b), first indent, applied where there were several places of delivery within a single member state complied with the Regulation’s objectives of predictability and proximity, and the court would so rule. In such a case, one court in that member state would have to have jurisdiction to hear all the claims arising out of the contract. That was the court for the place with the closest linking factor with the contract, which as a general rule would be the place of the principal delivery, determined on the basis of economic criteria. If it was not possible to determine a place of principal delivery, the claimant could sue in the court for the place of delivery of its choice.
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