Cour de cassation 1ère Chambre civile; 2023-05-17; 1re Civ., 17 mai 2023, pourvoi n° 22-14.055
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2023:C100328
Date: 2023-05-17
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: France

82023FR0517(52)_ENG_SUMJURE
JURE summary
JURE summary
In this case, the Court de Cassation (hereinafter ‘the Supreme Court’) examined if the cour d’appel de Montpellier (hereinafter ‘the Court of Appeal’) made a correct application of the law when it determined the place of delivery of an aeroplane.
Defendants 1 and 2 bought a microlight airplane from the plaintiff in Switzerland.
Claiming that the unladen mass of the aeroplane exceeded the authorised mass, they sued in France the plaintiff and the manager of the company which had sold the aeroplane to the plaintiff (hereinafter ‘defendant 3’).
The case was brought before the Court of Appeal.
The problem of jurisdiction was in this case governed by Article 5(1), point (a) and point (b), of the new Lugano Convention (1), which provides as follows:
‘A person domiciled in a State bound by this Convention may, in another State bound by this Convention, 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 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 State bound by this Convention where, under the contract, the goods were delivered or should have been delivered […]’.
The plaintiff claimed that he made the aeroplane available to defendants 1 and 2 in Switzerland, and then delivered it to France because those defendants could not go to Switzerland. He argued that the aeroplane was delivered to France under a conveyance agreement distinct from the sale contract, as a result of which the Swiss courts had jurisdiction.
The Court of Appeal refused to decline jurisdiction. It held that it was not established that the parties had agreed on a place of delivery, so that the competent courts were those of the country where the aeroplane was actually delivered.
The plaintiff appealed to the Supreme Court.
The Supreme Court held that, when it is impossible to determine the place of delivery on the basis of a contract for the sale of goods, that place 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’ (2).
However, the Supreme Court also held that the Court of Appeal should have examined whether this transport to France affected the place of delivery.
For this reason, the judgment of the Court of Appeal was set aside.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) The Supreme Court here relies on the case-law of the Court of Justice of the European Union. See Judgment of the Court of Justice of 25 February 2010, C-381/08, ECLI:EU:C:2010:90, paragraph 63