Tiphaine BéginIvana JarošováJitka StrakováŽiga Pečuh

Parties

Car Trim is the claimant

(Germany)

KeySafety Systems Srl is the defendant(Italia)

FactsKey safety, which is an italian firm, supplies

airbag systems to italian car manufactures

From July 2001 to December 2003, Keysafety purchased from Cartrim components of airbag

systems, according to 5 supply contracts.

Keysafety terminated the contract in December 2003 whereas it should run until

2007.

ProcedureCar Trim brought an action for damages before the Landgericht Chemnitz (regional

court)

The Landgericht denied that it had no international jurisdiction.

Car trim brought an appeal before the Bundesgerichtshof and it argued that the

regional court was wrong.

Preliminary QuestionThe answer to that question depends on the interpretation of Article 5(1)(b) of Regulation No 44/2001 : Where is the business domicile

of KeySafety ?Consequently, it is possible for the German

courts to have jurisdiction to adjudicate the action for damages only if the place of

production is to be regarded as the place of performance of ‘the obligation in question’

within the meaning of Article 5(1) of Regulation No 44/2001

Decision of ECJ

Article 5(1)(b) of Council Regulation (EC) No 44/2001, must be interpreted as meaning that where the purpose of contracts is the supply of goods, those contracts must be classified as a ‘sale of goods’ within the meaning of the first indent of Article 5(1)(b) of that regulation.

The first indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that, in the case of a sale involving carriage of goods, the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract.

Where it is impossible to determine the place of delivery on that basis, hat place is the place where the physical transfer of the goods took place.

Falco Privatstiftung and Rabitsch (Case C-533/07)

Color Drack (Case C-386/05)

Rehder (Case C-204/08)

Sales of goods or provision of Sales of goods or provision of servicesservicesA contract which has as its characteristic obligation

the supply of a good will be classified as a ‘sale of goods‘

A contract which has as its characteristic obligation the provision of services will be classified as a ‘provision of services’

Contracts for the supply of consumer goods are to be considered sales contracts unless the party who orders the goods undertakes to supply a substantial part of the materials

If the seller is responsible for the quality of the goods, it will be considered as a ‘contract for the sale of goods‘

If the seller is responsible for correct implementation in accordance with the purchaser’s instructions, it will be considered as a ‘provision of services‘

Place of deliveryPlace of deliveryThe parties can choose where the goods will be

delivered according to the art. 5/1 b)of the Regulation => preclusion of application of the rules of private international law of the Member State with jurisdiction and the substantive law

It is that place which is to be regarded as the place where the goods were delivered or should have been delivered

If there is no will of the parties there are two possibilitiesPlace of the physical transfer to the

purchaserPlace at which the goods are handed over

to the first carrierThe place where the goods were

physically transferred or should have been physically transferred to the purchaser at their final destination is the most consistent as the ‘place of delivery’

Examples of other cases concerning the same notion or Article.C- 386/05 Color Drack: Court for the place

of performance of the contractual obligation in question, sale of goods

C-204/08 Peter Rehder : Place of performance of the service

C‑533/07,Falco Privatstiftung:The concept of provision of services — Contract assigning intellectual property rights

C‑19/09 Wood Floor Solutions: Provision of services

Further reading  Stone, P.: Eu Private International Law, pp. 84 - 91(http://

books.google.com/books?id=lulk-mIb5dUC&lpg=PA86&dq=C-381%2F08%20%20Car%20Trim%20GmbH&pg=PA84#v=onepage&q&f=false)

Vezyrtzi, A: Jurisdiction and international sales under hte Brussels I regulation: does forum shoping come to an end?, J. Eur. L. Online 83 (2009) (http://www.cjel.net/online/15_2-vezyrtzi-2/)

Lavelle, J.: Defining times-art 5 (1)(b),Shipping and Trade Law, 2010 (http://eprints.soton.ac.uk/147463/1/Lavelle_STL_2010_Issue_4.pdf) – summary of all the mentioned cases

(http://www.springerlink.com/content/uw818p6716l33130/)

Leible, S.: Der Erfüllungsort iSv Art. 5 Nr. 1 lit. b Brüssel I-VO – ein Mysterium?, Festschrift für Ulrich Spellenberg ,Berlin, New York (Sellier - DE GRUYTER) 2010, pp. 451–466 (http://www.reference-global.com/doi/abs/10.1515/9783866538955.451)

Schuhmacher: Zur gerichtlichen Zuständigkeit in Zivil- und Handelssachen, zur Bestimmung des Erfüllungsorts der Verpflichtung; Kriterien zur Abgrenzung zwischen "Verkauf beweglicher Sachen" und "Erbringung von Dienstleistungen, Wirtschaftsrechtliche Blätter, Volume 24, Number 5, 229-231

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