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CISG CASE PRESENTATION

Germany 9 July 2008 Federal Supreme Court (Airbag parts case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080709g1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20080709 (9 July 2008)

JURISDICTION: Germany

TRIBUNAL: Bundesgerichtshof [BGH = Federal Supreme Court]

JUDGE(S): Ball, Dr. Wolst, Dr. Frellesen, Dr. Milger, Dr. Achilles

CASE NUMBER/DOCKET NUMBER: VIII ZR 184/07

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: 1st instance Landgericht Chemnitz (2 HKO 3024/05) 26 January 2007; 2d instance Oberlandesgericht Dresden 11 June 2007

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Italy (defendant)

GOODS INVOLVED: Airbag parts


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 3 ; 8 ; 31

Classification of issues using UNCITRAL classification code numbers:

3B [Goods to be manufactured, services: services [not] preponderant part of obligation];

8C [Interpretation of party's statements or other conduct: interpretation in light of surrounding circumstances];

31A [Place for delivery: contracts involving carriage of goods]

Descriptors: Services ; Intent ; Delivery ; Jurisdiction

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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

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): BGH website <http://www.bundesgerichtshof.de>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

German: Peter Mankowski, Der Erfülungsortsbegriff unter Art. 5 Nr. 1 lit.b EugVVO eine immer grosser werdendes Rätsel? Aus Anlass der Vorlage BGH 9.7.2008 VIII ZR 184/07, Internationales Handelsrecht (2/2009) 46-62

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Case text (English translation)

Federal Supreme Court (Bundesgerichtshof)

9 July 2008 [VIII ZR 184/07]

Translation by [*] Birgit Kurtz [**]

Reference Book:     yes
BGHZ: [1] no
BGHR: [2]         yes       

Brussels-1-CR 5 No. 1 letter b

In accordance with Art. 68, 234 EC Treaty, the following questions concerning the interpretation of European Union Law are referred to the Court of Justice of the European Communities for a preliminary ruling:

a) Is Article 5(1)(b) of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that contracts for the delivery of goods to be produced or manufactured are, notwithstanding specific obligations on the part of the customer with regard to the provision, fabrication and delivery of the components to be produced, including a guarantee of the quality of production, reliability of delivery and smooth administrative handling of the order, to be classified as a sale of goods (first indent), and not as provision of services (second indent)? What criteria are decisive for the distinction?
 
b) If a sale of goods is to be presumed: in the case of contracts involving carriage of goods, is the place where under the contract the goods sold were delivered or should have been delivered to be determined according to the place of physical transfer to the purchaser, or according to the place at which the goods were handed over to the first carrier for transmission to the purchaser?

German Supreme Court, Order of 9 July 2008 - VIII ZR 184/07 - OLG [3] Dresden, LG [4] Chemnitz

The 8th Civil Panel of the Federal Supreme Court, through Presiding Judge Ball, Judges Dr. Wolst, Dr. Frellesen, Dr. Milger as well as Dr. Achilles, upon the oral hearing of 9 July 2008, has decided:

I.     The proceeding is suspended.
II.    

In accordance with Art. 68, 234 EC Treaty, the following questions concerning the interpretation of European Union Law are referred to the Court of Justice of the European Communities for a preliminary ruling:

1.     Is Article 5(1)(b) of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that contracts for the delivery of goods to be produced or manufactured are, notwithstanding specific obligations on the part of the customer with regard to the provision, fabrication and delivery of the components to be produced, including a guarantee of the quality of production, reliability of delivery and smooth administrative handling of the order, to be classified as a sale of goods (first indent), and not as provision of services (second indent)? What criteria are decisive for the distinction?
 
2. If a sale of goods is to be presumed: in the case of contracts involving carriage of goods, is the place where under the contract the goods sold were delivered or should have been delivered to be determined according to the place of physical transfer to the purchaser, or according to the place at which the goods were handed over to the first carrier for transmission to the purchaser?

GROUNDS
I.

1      1. Defendant [Buyer], based in Italy, which supplies airbag systems to the I... automobile manufacturers F... and L..., acquired between July 2001 and December 2003 from Plaintiff's legal predecessor [Seller], based in Germany, supply components to be finished for these systems, and the necessary parts and materials for these components were predominantly obtained from other suppliers. Concerning the production and delivery of these components, which, according to the contract, [Seller] was supposed to deliver in Italy, on call, costs to be borne by sender ["frei Werk"], from the factory in C... to B... (= [Buyer]) in Italy, the parties entered into altogether five master delivery agreements, each relating to specific vehicle types, the effective term of which is disputed between the parties. Likewise, there is a dispute between them about the place of performance of the production and delivery obligations assumed by [Seller] as well as the genesis of a forum selection clause designating Turin.
 
2      [Buyer] terminated the individual contracts effective the end of 2003. [Seller], which assumed that some of the contracts ran to the summer of 2007, considers the terminations to be breaches of contract and demands damages, which it raised in a complaint filed in the Chemnitz District Court (Landgericht), the court with jurisdiction over the then place of production. In accordance with an objection by [Buyer], that court dismissed the claim as impermissible because of the German courts' lack of international jurisdiction. The [Dresden] Court of Appeals (Oberlandesgericht) dismissed [Seller]'s appeal against that decision. [Seller]'s appeal to this Court, which was authorized by the Court of Appeals, is directed at that dismissal.
 
3 2. The Court of Appeals essentially set forth the following grounds for its decision:
 
4 The Court of Appeals stated that, according to Art. 2(1) of Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (EuGVVO),[5] which applies here, the Italian courts are responsible for deciding the legal dispute. After [Buyer] also raised the objection of the lack of international jurisdiction of German courts in a permissible fashion, the jurisdiction of German courts can be based neither on Art. 22 et seq. EuGVVO, nor on the special jurisdiction bases set forth in Art. 5 et seq. EuGVVO. An agreement concerning the location where all contractual duties, or at least [Buyer]'s obligations to accept delivery and to pay, had to be fulfilled, had not been reached; such an agreement can also not be found in the individual delivery clauses. The place of performance and, thus, the jurisdictional forum of the contract must therefore be determined according to Art. 5(1)(b) EuGVVO. In view of the overall context of the contractual provisions, an agreement on the place of performance is set out neither in the clause agreed upon at the beginning of the contractual relationship, i.e., "free delivery to [Buyer] in C...," nor in comparable later clauses. Only a declaration of who bears the costs was made in those clauses. That is why the place of performance according to Art. 5(1)(b) (1st indent) EuGVVO is the location where, under the contract, delivery took place or should have taken place. This is not the location where the goods to be shipped were transferred to the carrier for the purpose of transporting them to Italy, but rather the location where they were to be handed over to [Buyer] in Italy. The fact that, under substantive law, it was a sales contract involving carriage of goods, is not decisive for the determination (to be made autonomously) of the place of delivery, which will be the basis for jurisdiction. Similarly, the designation of the place of performance can also not be made according to Art. 5(1)(b) (2d indent) EuGVVO, since the service elements, particularly the requirement to process the materials obtained from the suppliers in a manner that was tailored to [Buyer]'s needs, had not given the contracts the overall characteristic. Rather, [Seller]'s performance characteristic for the contract consisted, according to the intention of the contract parties, more of a success-oriented performance of a typical sales contract, which are delivery and transfer of title to the finished goods to [Buyer]. To that extent, Art. 3(1) of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and Art. 1(4) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees (Consumer Goods Sales Directive), also show that the legal transactions at issue here are to be classified as sales. On the other hand, a classification, as in Art. 3(2) CISG, according to the main focus of performance in each instance, cannot be decisive because such a classification requirement would be contrary to the purpose of the focus on the place of performance in Art. 5(1)(b) (2d indent) EuGVVO, to determine jurisdiction using simple and clear criteria in a foreseeable way and without further details.
 
5 The Court of Appeals stated that a forum selection clause designating Turin had not been agreed to by the parties. The purchase orders written up in the contract language English and signed by both parties, which, after the previously made oral sales contracts, were exchanged and which contained a reference to [Buyer]'s Italian-language general terms and conditions, including the forum selection clause contained therein, did not become part of the contract because, to that extent, they contradicted the previously made oral sales contract. An intention of the contract parties to revise again the points they had agreed to, could not be discerned, even irrespective of the fact that the signature in the first purchase order, due to an objection by [Seller] noted there against another contract clause, did not even express agreement.

II.

6      The success of [Seller]'s appeal to this Court depends on whether the Chemnitz District Court incorrectly refused to accept international jurisdiction under Art. 1(1) (1st sentence) EuGVVO, in accordance with this regulation, to decide the legal dispute. Whether this is the case depends on an interpretation of Art. 5(1) EuGVVO. To that extent, the Court of Appeals correctly interpreted the purchase orders countersigned by [Seller] to mean that, in light of the already fundamentally agreed upon contract clauses, there was no intention of the contract parties to make [Buyer]'s general terms and conditions an additional part of the delivery contract, which until then had not been a subject of the negotiations conducted by the two parties, and, via the forum selection clause contained therein, to agree to Turin as the exclusive forum under Art. 23 EuGVVO. Because [Buyer] has its place of business in Italy, which establishes jurisdiction under Art. 2 EuGVVO, and according to the undisputed findings of the Court of Appeals, there is neither exclusive jurisdiction under Art. 22 EuGVVO in Germany, nor has jurisdiction been agreed to or is it deemed to have been agreed to under the provisions of Art. 23 et seq. EuGVVO, German courts have international jurisdiction for the claimed damages only if Ch... must be viewed as the place of performance within the meaning of Art. 5(1) EuGVVO.
 
7 1. According to Art. 5(1)(a) EuGVVO, a person domiciled in a Member State can be sued in the courts for the place of performance of the obligation in question if a contract or contractual requirement is the subject of the proceedings. For the sale of goods and the provision of services, this rule is supplemented in Art. 5(1)(b) EuGVVO to state that, within the meaning of this rule -- and to the extent nothing else has been agreed upon - the place of performance of the obligation is:

-    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.
 

8 Art. 5(1)(c) EuGVVO provides that, in cases where letter "b" does not apply, letter "a" does.
 
9 In accordance with Art. 5(1) of the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 (EuGVÜ),[6] the European Court of Justice ruled in an action for payment under a contract for work and materials [Werklieferungsvertrag], that the place of performance of the obligation to pay must also be determined by the substantive law, which, according to the conflict of laws rules of the court handling the case, is relevant to the disputed contractual obligations, if, according to these rules, regulations apply such as those of the Uniform Law on the International Sale of Goods, which were added to the Hague Convention of 1 July 1964 (Decision of 29 June 1994 - C-288/92, Slg. 1994, I-2913, 29 - Custom Made Commercial Ltd./Stawa Metallbau GmbH). Regarding Art. 5(1) EuGVÜ, the Court of Justice, in settled case law, did not consider an autonomous interpretation of the term "place of performance" to be necessary (e.g., Decision of 19 February 2002 - C-256/00, Slg. 2002, I-1699, 36 - Besix SA/WABAG). Regarding jurisdiction pursuant to Art. 5(1)(b) (1st indent) EuGVVO, which already applied in that case (which dealt with a buyer's damages claim based on the failure to fulfill contractual obligations under a contract for the sale of goods), the Court of Justice explained, on the other hand, that the European Legislature (moving away from the previously practiced solution) designated the place of delivery as an autonomous connecting link with the regulation created in this clause for special jurisdiction for contractual disputes concerning the sale of goods. The Court of Justice wanted to have the criterion apply to all complaints arising out of the same contract on the sale of goods and not only to those arising out of the obligation to deliver (Decision of 3 May 2007 - C-386/05, Slg. 2007, I-3699, 26, 39 - Color Drack GmbH/Lexx International Vertriebs GmbH). At the same time, the Court of Justice decided that the referenced regulation applied also in the case of multiple places of delivery in one Member State and that, in the case of multiple places of delivery, the place of performance within the meaning of Art. 5(1)(b) (1st indent) EuGVVO, is generally the place where the closest connecting link between the contract and the responsible court exists (Decision of 3 May 2007, id. 40).
 
10 The Court of Justice has not decided which linking factors for the determination and classification of the places of performance within Art. 5(1)(b) EuGVVO are essential if the contract to be evaluated contains both elements of a sale of goods as well as elements of the provision of services. It also did not make a statement as to how a classification is to be made when there is no clear emphasis on one of the contract types, especially whether the buyer then has a right to select between the alternatives of the first and the second indent or whether, instead, letter "a" will apply via the application of Art. 5(1)(c) EuGVVO. For the alternative set forth in the first indent of letter "b" of the sale of goods, the Court of Justice has, further, not yet decided if, in the case of a sale involving carriage of goods, the place "where, under the contract, the sold goods were delivered or should have been delivered" is the place of the seller's delivery act or the place of the buyer's act of acceptance. It merely emphasized the purpose of Art. 5(1)(b) EuGVVO to unify the rules on jurisdiction in civil and commercial matters through jurisdictional provisions that are foreseeable in large measure and make it possible to determine the place of jurisdiction directly and without reference to internal regulations of the Member States (Decision of 3 May 2007, id., 19, et seq., 30).
 
11 2. According to the stated purpose of Regulation 44/2001 to unify the rules on international jurisdiction in civil and commercial matters through jurisdictional provisions, and in consideration of the goal to assign, in the case of multiple places of performance, a uniform jurisdiction with the court that has the strongest link to the place of the main delivery according to economic criteria (European Court of Justice, Decision of 3 May 2007, id., 39 et seq.; see also re. Art. 5(1) EuGVÜ Decision of 19 February 2002, id., 32), it appears necessary to generally concentrate the jurisdiction for legal disputes regarding contractual obligations under a delivery contract in dispute between the parties at one single place of performance. In this context, in spite of the parties' dispute regarding the emphasis of the contractual performance obligations according to the undisputed findings of the Court of Appeals regarding the substantive law side of their delivery relationships, they unanimously assume that the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies to the contractual relationships between them. Regarding the place at which the goods were to be or should have been delivered by [Seller] (Art. 31 CISG), the Court of Appeals, as the finder of fact, determined that the clause "delivery at no cost to B... (= [Buyer]) in C..." was not to be viewed as an agreement on a place of performance in Italy, but rather as a pure cost allocation clause, so that, in light of the transportation to be organized by [Seller], the existence of a sale involving carriage of goods within the meaning of Art. 31(a) CISG must be assumed.
 
12       a) It is in dispute if and under which conditions, delivery contracts with certain service obligations must be viewed as sales of goods or as provisions of services for the determination of jurisdiction according to the place of performance (Art.1 EuGVÜ, Art. 5(1)(b) EuGVVO).
 
13             aa) The 11th Civil Panel of the German Federal Supreme Court, in its decision of 26 October 1993 (XI ZR 42/93, NJW 1994, 262, at II 2 a cc (1)), autonomously interpreted the term "provision of services" in Art. 29(1) of the Introductory Law to the German Civil Code (EGBGB) for the determination of the law applicable to consumer contracts, with reference to Art. 5 of the Rome ECC Treaty on the Law Applicable to Contractual Obligations of 19 June 1980 (EVÜ) to mean that this term, which is to be interpreted broadly, refers to service contracts that are not employment contracts, to contracts for work and materials (manufacture of new goods and repairs), and to relationships regarding the handling of a matter for consideration [Geschäftsbesorgungsverhältnisse]. The common characteristic is that the performance owed to the consumer involves an activity. This phraseology has, from time to time, been picked up in German lower court decisions regarding Art. 5(1)(b) EuGVVO and legal commentaries in order to explain that, at the core, contracts for work and materials and contracts regarding the handling of a matter for consideration as well as all service contracts that are not employment contracts counted as contracts for the provision of services (Cologne Court of Appeals, OLGR 2007, 224; IHR 2007, 164, 166; Düsseldorf Court of Appeals, NJW-RR 2008, 223, 224; Musielak / Stadler, German Code of Civil Procedure, 6th ed., Art. 5 EuGVVO 9; Nagel / Gottwald, International Civil Procedure Law, 6th ed., 3 50).
 
14 To the extent that this Panel used this phrase in its decision of 19 March 1997 (BGHZ 135, 124, 130 et seq.), this was done with reference to the fact that the provision of services involved an activity based on such contracts. At the same time, the Panel distinguished this from a contract in which the purpose to acquire a specific object is in the foreground and the additional services owed are only subsidiary services. This is comparable to some German lower court decisions (Cologne Court of Appeals, OLGR 2005, 380 et seq.; IHR 2007, 164, 166; Karlsruhe Court of Appeals, Decision of 12 June 2008 - 19 U 5/08, text no. 19, quoted by juris) as well as the jurisprudence of the Austrian Supreme Court (Decision of 20 February 2006 - 2 Ob 211/04z, EuLF 2006, II-10, 11), regarding contracts with sales and service elements that were analyzed to determine which activity stands in the foreground and must therefore be viewed as characteristic for the contract. Specifically, in the case of a supplier for the automobile manufacturing industry, the court analyzed whether only predetermined serial parts with the resulting primary duty to transfer title were to be delivered, or whether the supplier was initially supposed to be responsible for developing the parts to be delivered and to make them ready to go into mass production, so that at least for this phase of the performance, the focus was considered to be in the service portion (Cologne Court of Appeals, OLGR 2005, 380, 381). Similarly, some of the German legal commentaries analyze which service components are the main ones in a particular case, or whether it is up to the buyer to provide a substantial portion of the necessary materials when analyzing contracts with sales and service portions, referencing Art. 1(4) of the Consumer Goods Sales Directive, as well as Art. 3 CISG (Hk-German Code of Civil Procedure/Dörner, 2d ed., Art. 5 EuGVVO 15; Kropholler, European Civil Procedure Law, 8th ed., Art. 5 44; MünchKomm German Code of Civil Procedure / Gottwald, 3d ed., Art. 5 EuGVVO 17; Baumbach / Lauterbach / Hartmann, German Code of Civil Procedure , 66th ed., Art. 5 EuGVVO 8 et seq.; Thomas / Putzo / Hüßtege, German Code of Civil Procedure, 28th ed., Art. 5 EuGVVO 8).
 
15             bb) The Court of Appeals viewed as service elements in the contractual obligations assumed by [Seller] the obligations to cut to size and process, according to [Buyer]'s specifications, the materials obtained from the supplier and, to that extent, it referred to [Seller]'s submissions on appeal, according to which [Seller] had to manufacture airbags by hand in a given design out of raw material from predetermined vendors, in a way that is typical for a supplier to the automobile industry, in order to be able to deliver them on demand in coordination with [Buyer]'s production process. In connection herewith, detailed guidelines regarding work organization and quality control up to specific requirements concerning packaging and labeling of the goods to be delivered, as well as the contents and the design of packaging slips and invoices existed. These services rendered for the manufacture of the product to be delivered were not viewed by the Court of Appeals as giving the contract its overall character, due to the parties' intention focused not on the activities, but on the delivery as the performance; the elements giving the contract its character, irrespective of any possible balancing in accordance with Art. 3(2) CISG, focusing on the economic weight of the individual portions of the performance, which were contained in the products to be delivered, were elements characteristic of a sales contract, such as delivery and transfer of title of the manufactured goods in exchange for acceptance and payment.
 
16             cc) To the extent that contracts involving the delivery of goods to be manufactured or produced are concerned, this Panel favors the view that EU law, in Art. 1(4) of the Consumer Goods Sales Directive, contains an indication in favor of an autonomous interpretation required by Art. 5(1)(b) EuGVVO, that such contracts, through certain specifications of the buyer as to procurement, processing and delivery of the goods to be manufactured, including the assurance of manufacturing quality, the delivery reliability and the seamless administrative processing of orders, do not necessarily qualify as an obligation to provide services.
 
17 The Panel cannot extract from written EU law any classification criteria going any further in dealing with contracts with elements of sales contracts and service contracts. In view of the goal pursued by Art. 5(1) EuGVVO, to give jurisdiction to the court with the closest geographical connection to the place of performance of the obligation that gives the contract its character, for reasons of substantive proximity (compare European Court of Justice, Decision of 3 May 2007, id., 22 et seq., 40), it would make sense to choose a connecting link to the respective emphasis of the performance obligations to be determined according to economic criteria, as this was done in Art. 3(2) CISG or Art. 6(2) of the UN Convention on the Statute of Limitations in Contracts for the International Sale of Goods of 14 June 1974, because of the lack of other useful connecting links.
 
18       b) If, according to this, a place of performance emerged that would result in a court's jurisdiction under Art. 5(1)(b) (1st indent) EuGVVO, then the place at which the sold goods were delivered or should have been delivered under the contract would have to be determined pursuant to this provision. To that extent, it has been decided in the jurisprudence of the Court of Justice that the place of delivery determines the jurisdiction for all complaints arising out of one and the same contract about the sale of goods, and not just for the complaint related to the obligation to deliver (European Court of Justice, id., 26, 39; compare also German Supreme Court, Decision of 2 March 2006 - IX ZR 15/05, NJW 2006, 1806, 14 et seq.). It has similarly been decided that the referenced provision determines the connecting link for international and local jurisdiction autonomously as well as directly and without reference to domestic rules of the Member States (European Court of Justice, id., 24, 30).
 
19             aa) The question which place of delivery must be assumed in applying Art.5(1)(b) (1st indent) EuGVVO when the sale at issue involves carriage of goods, was in dispute before the issuance of the decision of the German Supreme Court of 3 May 2007 (id.) and has remained in dispute (compare Piltz, NJW 2007, 1801, 1802). The Italian Corte Suprema di Cassazione, in its decision of 27 September 2006 (ZEuP 2008, 165, 167 et seq.), has argued that, for the determination of the place of delivery, Art. 31(a) CISG applies with the result that the place of performance that determines the jurisdiction is located where the goods are handed over to the first carrier for the purpose of transportation to the buyer. The Austrian Supreme Court, on the other hand, has argued that the place of delivery must be determined autonomously according to purely factual criteria without reference to domestic substantive law (Decisions of 20 February 2006 - 2 Ob 211/04z, EuLF 2006, II-10; of 14 December 2004 - 1 Ob 94/04m, EuLF 2005, II-80, 81), and viewed it, in the case of sales contracts involving carriage of goods, at the place where the buyer accepts the goods as a delivery in accordance with the contract (Decision of 14 December 2004, id.). The decisions of the lower German courts are inconsistent. While the Courts of Appeals of Hamm and Cologne argue that the place of performance that determines jurisdiction for a sales contract is the place where the buyer physically accepts the goods and thus attains the power of disposition over them (Hamm Court of Appeals, OLGR 2006, 327, 330; Cologne Court of Appeals, IHR 2007, 164, 166), the Stuttgart Court of Appeals is of the opinion that, in the case of sales contracts involving carriage of goods, the place of performance, within the meaning of Art. 5(1)(b)(1st indent) EuGVVO, is the place where the seller handed over the goods to the carrier tasked with the transportation to the buyer (OLGR 2008, 350; same Oldenburg Court of Appeals, IHR 2008, 112, 118).
 
20 In the German legal commentaries, we are offered a similar picture. Some argue that, where there is no party agreement, the place where the buyer physically accepts the goods is the place of delivery (Kropholler, id., Art. 5 49; Hk-German Code of Civil Procedure / Dörner, id., Art. 5 EuGVVO 16 et seq., each with further references). Only if the sales contract involving carriage of goods is not consummated and the contract is silent on the place of delivery, then Art. 31 CISG can apply (Kropholler, id.). Others, expressly in light of the wording of Art. 5(1)(b) (1st indent) EuGVVO, argue that the answer to the question where the goods were delivered or should have been delivered "under the contract" must actually be deduced from the substantive law applicable to the contract [Vertragsstatut], so that in the case of a sales contract involving carriage of goods it must be assumed that the place of sending off is the place of performance and that, thus, there will be jurisdiction for the exporting seller as plaintiff (MünchKomm-German Code of Civil Procedure / Gottwald, id., Art. 5 EuGVVO 19; Nagel / Gottwald, id., 3 50, each with further references).
 
21             bb) This Panel is leaning towards the view that, also in the case of a sales contract involving carriage of goods, the place of performance within the meaning of Art. 5(1)(b) (1st indent) EuGVVO, is to be determined according to the place where the buyer attains or should have attained the actual power of disposition over the delivered goods under the contract. Regulation 44/2001 is geared towards unifying the rules about international jurisdiction in civil and commercial matters through jurisdictional rules that are foreseeable to a high degree and enable a party to determine without difficulty in which court it can sue or be sued (European Court of Justice, id., 19 et seq.). For this purpose, according to the reasoning for the Commission draft regarding Art. 5 (KOM (1999) 348 endg., ABl. EC No. C 376 E/01 of 28 December 1999, page 15), which remained unchanged except for a translation variant (exchange of "according to the contract" and "under the contract"), a pragmatic determination of the place of performance has been made that relies on a purely factual criterion.
 
22 According to this, in the view of this Panel, the place of delivery is the place where the buyer, under the contract, physically accepts or should have accepted (compare also Hager/Benteler, IPrax 2004, 72), here, C... in Italy. From the German text of this provision (". . . the place . . ., where, under the contract, the goods were delivered . . ."), which is referred to from time to time, the contrary cannot necessarily be deduced, that in the case of a sales contract involving carriage of goods the place of delivery is where the goods are handed over to the first carrier for the purpose of forwarding to the buyer (e.g., MünchKomm German Code of Civil Procedure / Gottwald, id., with further references; Piltz, NJW 2007, 1801, 1802). Rather, the phrasing of the term "the place . . . where" is open to different interpretations and produces no clear interpretation result, neither in the overall view of the individual language versions, nor taken alone, in favor of the sending-off place or the place of destination of the goods (see Hager / Benteler, IPrax 2004, 72, 74 et seq.). On the other hand, without colliding with the term "under the contract" (still reflected in the Commission draft as "according to the contract") (compare Hager / Benteler, IPrax 2004, 72, 74), the consciously selected connection according to factual criteria prohibits reference to a determination of the place of delivery according to substantive law if and to the extent that the connecting link can be made according to factual criteria (Kropholler, id., with further references). That is so because, in the case of a determination of the respective place of delivery based on substantive law, the uniformity desired specifically through the connection to factual criteria with the resulting foreseeability and easy determinability of the place of performance that determines jurisdiction, would be called into question for the group of sales and service contracts (compare European Court of Justice, id., 19 et seq.). That is all the more so because, according to the Commission draft, in this connection, at the same time, a reversal of the solution, provided in Art. 5(1) EuGVVO, of a reference to the conflict of laws rules in the forum State was supposed to lie, in order to avoid the disadvantages connected with such a reference for contracts on the sale of goods and the provision of services (KOM (1999) 348 endg., id.).
 
23 An unambiguousness of the criteria for the determination of a place of performance that determines jurisdiction that is perceivable based only on the external performance activities, as it is desired by Art. 5(1)(b) (1st indent) EuGVVO, can, in the case of contracts for the sale of goods, only be achieved by making a connecting link to the place where the buyer physically accepts or should have accepted the goods to be delivered, irrespective of the contractual delivery clauses or performance activities, the contents of which can, under certain circumstances, be ascertained only through a legal analysis connected to them. That is all the more so because this place of destination at the same time contains a certain physical proximity to the act of performance so that it gives to the court that was called to decide the dispute the necessary proximity to the matter, which is what the chosen connection also wants to ensure (compare European Court of Justice, id., 22).

III.

24     The decision whether Art. 5(1)(b) EuGVVO must be interpreted within the meaning of the questions posed above is, pursuant to Art. 68, 234 EC Treaty, reserved for the Court of Justice of the European Communities. The legal dispute must, therefore, be suspended, and the questions listed above regarding the interpretation of EU law are to be submitted to the Court of Justice for a preliminary decision.

Ball Dr. Wolst Dr. Frellesen
Dr. Milger Dr. Achilles

Lower Courts:

Chemnitz Regional Court, Decision of 26 January 2007 - 2 HKO 3024/05 -
Dresden Court of Appeals, Decision of 11 June 2007 - 3 U 336/07 -


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany is referred to as [Seller] and Defendant of Italy is referred to as [Buyer]

** Birgit Kurtz, is with the New York office of the law firm of Crowell & Moring. Among other things, she is co-author of "Litigation and Arbitration in the U.S.A. [Prozessführung und Schiedsgerichtsbarkeit in den USA], published by the German American Chamber of Commerce in 2009. For further information, see <http://www.crowell.com>

1. "BGHZ" stands for " Entscheidungssammlung des Bundesgerichtshof in Zivilsachen," the German Supreme Court Reporter for Civil Matters.

2. "BGHR" stands for "Sammlung der Entscheidungen des Bundesgerichtshofes," the Collection of decisions of the German Supreme Court.

3. "OLG" stands for "Oberlandesgericht," a German Court of Appeals.

4. "LG" stands for "Landgericht," the German district court.

5. "EuGVVO" stands for" Europäische Gerichtsstands- und Vollstreckungsverordnung," the European Jurisdiction and Enforcement Regulation.

6. "EuGVÜ" stands for "Übereinkommen über die gerichtliche Zuständigkeit und die Vollstreckung gerichtlicher Entscheidungen in Zivil- und Handelssachen vom 27. September 1968," the EEC Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

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Pace Law School Institute of International Commercial Law - Last updated September 21, 2009
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