Opinion of the Advocate General — ECLI:EU:C:2009:577
Date: 2009-09-24
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in matters relating to a contract within the meaning of Article 5(1)(b) (Council Regulation No 44/2001, Art. 5(1)(b)) 2. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in matters relating to a contract within the meaning of the first indent of Article 5(1)(b) (Council Regulation No 44/2001, Art. 5(1)(b), first indent) 1. Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that where the purpose of contracts is the supply of goods to be manufactured or produced and, even though the purchaser has specified certain requirements with regard to the provision, fabrication and delivery of the components to be produced, the purchaser has not supplied the materials and the supplier is responsible for the quality of the goods and their compliance with the contract, 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. In that regard, in view of the fact that, for the purposes of identifying the court with jurisdiction in relation to contracts for the sale of goods or for the provision of services, Regulation No 44/2001 identifies as a connecting factor the obligation which characterises the contract in question, such contracts will be classified, respectively, as a ‘sale of goods’ within the meaning of the first indent of Article 5(1)(b) of the regulation where the characteristic obligation is the supply of a good, and as a ‘provision of services’ within the meaning of the second indent of Article 5(1)(b) of that regulation where the characteristic obligation is the provision of services. In determining the characteristic obligation of a contract for the supply of goods to be manufactured or produced where the purchaser has specified certain requirements with regard to the provision, fabrication and delivery of the components to be produced, the fact that the goods to be delivered are to be manufactured or produced beforehand does not alter the classification of the contract at issue as a sales contract. In addition, other factors such as, on the one hand, the fact that the purchaser has not supplied materials and, on the other, the supplier’s responsibility for the quality and compliance of the goods, are indications that such a contract should be classified as a ‘contract for the sale of goods’. (see paras 31-33, 38, 40, 42-43, operative part 1) 2. The first indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 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, without reference to the substantive law applicable to the contract, 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. That criterion is the most consistent with the origins, objectives and scheme of Regulation No 44/2001 as the ‘place of delivery’ for the purposes of the first indent of Article 5(1)(b) of that regulation. It is, in that respect, highly predictable and meets the objective of proximity, in so far as it ensures the existence of a close link between the contract and the court called upon to hear and determine the case. Furthermore, the principal aim of a contract for the sale of goods is the transfer of those goods from the seller to the purchaser, an operation which is not fully completed until the arrival of those goods at their final destination. (see paras 46, 55-57, 60-62, operative part 2)