Nejvyšší soud; 2012-05-23; KOVOSVIT MAS, a.s.; A. B.; 23 Cdo 1051/2012
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2012:23.CDO.1051.2012.1
Date: 2012-05-23
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82012CZ0523(51)_ENG_SUMJURE
JURE summary
JURE summary
The case regards a determination of domestic and international jurisdiction by the Supreme Court of the Czech Republic in a business dispute concerning the place of delivery of goods.
The Court of First Instance rejected an objection of the defendant that the case should be held by the arbitrators and dismissed the case. The case regards a business dispute concerning the delivery of goods. According to invoices, the place of discharge was the town of Wehingen in Germany. The Court of First Instance applied Article 5(1)(b) of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”), which states that a person domiciled in a Member State may, in another Member State, be sued in the place of performance of the obligation in question. The place of performance shall be the place in a Member State where, under the contract, the goods were delivered or should have been delivered. Based on this provision, the Court of First Instance declared the lack of international jurisdiction of Czech courts and dismissed the case.
The Court of Second Instance confirmed the decision and did not endorse the plaintiff’s argument that the claim to pay the sales price in the Czech Republic should be taken into account. The plaintiff filed a cassation request to the Supreme Court of the Czech Republic.
The Supreme Court referred to its previous decision 33 Cdo 3689/2011 and to the decision of the Court of Justice from February 25 2010 known as Car Trim v. KeySafety Systéme Srl (C-381/08), according to which parties may agree on the place of delivery. This place must be deducible from the contract without referring to the applicable law. The Court of First Instance has stated that according to the contract the place of delivery was the town of Wehingen in Germany, but did not take into account delivery conditions. The parties agreed on the Incoterms rules. In this case, it is not possible to deduce the place of delivery without interpreting the delivery conditions of the contract. The place set out by delivery conditions does not have to be a place of delivery, but may be, for example, a place to which the seller is obliged to pay the transportation. It is therefore necessary to apply the principle of “pragmatic determination of the place of performance” based on factual findings according to the decision of the Court of Justice from 9 June 2011 known as Electrosteel Europe sa v. Edil Centro SpA (C-87/10) stating that if it is impossible to determine the place of delivery on that basis, without referring to the substantive law applicable to the contract, the place of delivery is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction. Therefore, the place of delivery in the sense of Article 5(1)(b) of the Brussels I Regulation is the place where the goods were transmitted.
The Supreme Court abolished the decisions of the Courts of First and Second Instances and the proceedings will continue at the Court of First Instance.