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CISG CASE PRESENTATION

France 26 February 2008 Cour d'appel [Appellate Court] Colmar (Printed products case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080226f1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20080226 (26 February 2008)

JURISDICTION: France

TRIBUNAL: Cour d'appel [Appellate Court] de Colmar

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 1A 07/03426

CASE NAME: Société K... Gesellschaft v. S.A. Q...

CASE HISTORY: 1st instance Tribunal de Grande Instance de Strasbourg 26 July 2007 [reversed]

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Printed products (Flyers)


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 3

Classification of issues using UNCITRAL classification code numbers:

3B [Sale of goods (services preponderant part of obligation): identification of type of services not considered]

Descriptors: Services

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1305&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (French): CISG-France database <http://www.cisg-france.org/decisions/260208v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1305&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Cour d'appel [Appellate Court] Colmar
Société K... [Buyer] v. SA Q... [Seller]

26 February 2008 [1 A 07/03426]

Translation [*] by Linus Meyer [**]

Edited by Amy Hornitzky [***]

[...]

PARTICULARS OF THE PROCEEDING

On 24 November 2005, the [Buyer], a company under German law which has its registered office in Berlin, ordered printed products (flyers) which were to be delivered by the [Seller] to a location in Portugal.

By an action of the executory officer of 22 August 2006, the [Seller] sued the [Buyer] in France before the County Court of Strasbourg for payment of 34,615.94 EURO with respect to that order.

In a memorandum filed on 2 April 2007, the [Buyer] has alleged that the County Court of Strasbourg is not internationally competent to hear this case. Its Argument is based on the Brussels-I-Regulation and the CISG, which, according to the [Buyer], favor the international competence of German courts.

By an order of 26 July 2007, the presiding judge rejected the assertion that the County Court of Strasbourg was not competent to hear the case.

He gave the following reasons for that decision:

   -    According to article 71 of the Brussels-I-Regulation, the special provisions of the CISG take precedence over the provisions in the general European regulation;
 
   -    Consequently, the contract between the parties has to be interpreted pursuant to the CISG, which provides in its article 3(1) [Translator's note: Most likely a typographical error with art. 3(2) CISG intended] that the CISG does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labor or other services;
 
   -    In the case at hand, the [Buyer] had commissioned the [Seller] to complete the work of printing, handling and delivering the product;
 
   -    The contract therefore did not fall within the CISG's scope of application;
 
   -    The present case was a lawsuit within the European Community, therefore the Brussels-I-Regulation applied which provides in its article 5 that:
 
       "A person domiciled in a Member State may be sued in another Member State: 1(a) in matters relating to a contract, in the courts where performance of the obligation in question" has been or must be effected;
 
   -    Accordingly, the [Buyer] was wrong in invoking the principle of art. 2 of the Brussels-I-Regulation, according to which "persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State" because this provision was superseded by a rule leading to a special competence.

[Buyer]'s position

By declaration received by the clerk's office at the court on 31 July 2007, the [Buyer] has appealed this decision.

In its last memorandum of 19 November 2007, the [Buyer] upholds its contention that the court lacked jurisdiction, as German courts, precisely the District Court (Landgericht) of Berlin, are internationally competent to deal with the matter. In addition, the [Buyer] requests the payment of 5,000 EURO according to art. 700 NCPC [*].

In support of its appeal, the [Buyer] has stated that:

   -    Generally, the District Court (Landgericht) of Berlin is competent under art. 2 of the Brussels-I-Regulation;
 
   -    The [Seller] was wrong in invoking art. 5.1 (a) of that Regulation; this rule only concerned sales contracts or contracts on services;
 
   -    Article 3(1) CISG states that: "Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production."
 
   -    Therefore, the contract in dispute fell within the CISG's scope of application;
 
   -    The [Seller] was also wrong in invoking art. 3(2) CISG, as the production of the goods which fall under para. (1) of art. 3 could not be considered as the supply of labor or other services. Para. (2) of art.3 applies only to additional services such as the mounting of the product, supervision, control, maintenance, storing or after-sales-services, which represent the preponderant part of a contract compared to the sales element. The objective of art. 3(1) CISG is to include contracts on goods to be produced within the CISG's scope of application and to exclude mixed contracts in which the sales element was not the preponderant contractual component;
 
   -    In the case at hand, the goods were to be delivered to Portugal; accordingly, the [Seller] could also have sued the [Buyer] before Portuguese courts, especially Lisbon;
 
   -    In any event, the County Court of Strasbourg had no competence over the dispute.

[Seller]'s position

In its latest memorandum of 22 October 2007, the [Seller] requests the confirmation of the court order and claims the payment of 4,000 EURO under art. 700 NCPC [*].

In reply to the [Buyer]'s memorandum, the [Seller] alleges that:

   -    The judge in the proceeding was correct in stating that the [Seller] was commissioned with the tasks of printing, handling and delivering the goods, and that therefore the contract did not fall within the CISG's scope of application;
 
   -    Consequently, art. 5.1 a) of the Brussels-I-Regulation was to be applied, which grants the right to sue the other contracting party in the court which has jurisdiction over place of performance of the obligation in question, in the case of provision of services, the place where the services were to be provided;
 
   -    It could not be disputed that the services in question had been provided in Strasbourg, thus leading to the competence of the County Court of Strasbourg.

OPINION OF THE COURT

The record of the procedure, the documents provided in the dispute and the parties' memoranda, may be referred to for a further account of the facts and the dispute;

Considering that:

   -    The [Seller] has not sued the [Buyer] before the District Court of Berlin, which would normally be competent under art. 2 of the Brussels-I-Regulation, but before the County Court of Strasbourg, relying on art. 5 of the abovementioned Regulation;
 
   -    This Regulation provides that:
 
       "A person domiciled in a Member State may be sued in another Member State:
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 and unless otherwise agreed, the place of performance of the obligation in question shall be:
-  in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
-  in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,
(c) if subparagraph (b) does not apply then subparagraph (a) applies";
 
   -    The [Seller] does not contest that this rule could be applied if the contract between the parties was a contract for the sale of goods in the sense of art. 3(1) of the CISG, but argues that this was not the case as the contract obliged the [Seller] to conduct the services of printing, handling and delivery;
 
   -    However, art. 3(1) CISG reads: "Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production";
 
   -    It is not in dispute that the [Buyer] has not supplied the materials necessary for the production of the flyers;
 
   -    Consequently, the [Seller] had been commissioned with the production, the packaging and the delivery of the flyers and the contract was, as the [Buyer] argues, a contract for the sale of goods under art. 3(1) CISG;
 
   -    In the proceedings at first instance, the [Seller] raised the argument (which it does not mention in its appeal submissions) that art. 3(2) CISG, which provides that "This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services" applied in the present case.
 
   -    However, the work necessary for the production and the packaging of the goods cannot be considered a service in the sense of art. 3(2) CISG, as otherwise art. 3(1) CISG would be a meaningless provision; the [Seller] has only produced and delivered the flyers, it has not provided any other services independent from the production, and it has not furnished more labor than that which was necessary for the production of the goods;
 
   -    The [Buyer], having concluded a contract for the sale of goods, could only have been sued in German courts, which had jurisdiction under art. 2 of the Brussel-I-Regulation, or before Portuguese courts under art. 5.1.a) of that Regulation (place where the goods were to be delivered);
 
   -    Therefore, the objection of lack of jurisdiction has to be allowed and it would be inequitable if the [Buyer] had to bear its costs under art. 700 NCPC [*] up to 1,500 EURO.

DECISION

This Court establishes that the formal correctness and the admissibility of the appeal are not in dispute;

On the merits of the case, this Court;

   -    Overrules the order in question and sustains the objection of lack of jurisdiction and therefore rejects the claim brought forward by the [Seller];
 
   -    Orders the [Seller] to pay 1,500 EURO to the [Buyer] under art. 700 NCPC; and
 
   -    Orders the [Seller] to bear the entire costs of the proceeding.

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Defendant-Appellant of Germany is referred to as [Buyer]; Plaintiff-Appellee of France is referred to as [Seller]. Amounts in European currency are indicated as [EURO].

Translator's note on other abbreviations: SA = Société anonyme [corporation], NCPC = Nouveau Code de procédure civile [French code on civil procedure].

** Linus Meyer has studied law in Osnabrueck, Germany and Lausanne, Switzerland. He was a participant in the 12th and a coach in the 13th Willem C. Vis Moot.

*** Amy Hornitzky has completed her Arts (languages) and Law degrees in Australi. She is currently interning at a law firm in Germany and will commence her LL.M. in the Netherlands in 2008.

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Pace Law School Institute of International Commercial Law - Last updated March 16, 2010
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