Riigikohus; 2019-09-11; TDG Engineering OÜ vs AMEX Export-Import GmbH ; 2-18-4182/34
Decision by national courts in the field of European Union law — ECLI:EE:RK:2019:2.18.4182.14545
Date: 2019-09-11
Subject matter: Judicial cooperation in civil matters
Origin: Estonia

82019EE0911(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of international jurisdiction of the Estonian courts resolved by the Riigikohus (hereinafter ‘the Supreme Court’).
A company domiciled in Austria (hereinafter ‘the defendant’) intended to purchase medical devices produced by a Russian company. The sale should have been made via a company domiciled in Estonia (hereinafter ‘the plaintiff’). The defendant sent the purchase price to the plaintiff, which transferred the money to the producer in Russia. The producer did not fulfil its obligations and failed to deliver the goods to the defendant. The defendant subsequently sought a refund from the plaintiff.
The plaintiff brought an action before the Viru Maakohus (hereinafter ‘the Court of First Instance’) in which it sought a declaration that it has no debt arising from the sales contract even if it was not disputed that the plaintiff received the money from the defendant. The Court of First Instance stated that the goods should have been delivered to Austria and, according to Article 5 of the Brussels I Regulation (1), declared a lack of its jurisdiction in favour of the Austrian courts. In its review of the case after the referral of the case back by the Tartu Ringkonnakohus (hereinafter ‘the Court of Appeal’), the Court of First Instance further clarified the circumstances of the relationship between the parties but came to the same conclusion: there was sales contract between the defendant and the Russian company, according to which the goods shall be delivered to Austria. The facts alleged by the plaintiff that (a) it has only an agency agreement with the defendant, (b) it was not a party to the sales contract and (c) the Estonian jurisdiction could be established according to its domicile were found irrelevant.
In a new appeal proceeding, the Court of Appeal refused to establish the jurisdiction on the place of performance of the sales contract since the plaintiff claimed and sought to establish the non-existence of a contract of sale between it and the defendant. But the plaintiff did not provide any evidence of the existence of the agency contract either. In these circumstances, the general rule set by Article 4(1) of the Brussels I Regulation (recast) (2) (jurisdiction established on the defendant's domicile) should be applied and, therefore, the lack of jurisdiction of Estonian courts was upheld.
The plaintiff filed a cassation appeal to the Supreme Court seeking to overrule the conclusions of both lower courts. The vital issue was to assess the relationship between the parties. The plaintiff did not dispute the existence of a contract between them but refused to accept it was a sales contract, but rather an agency contract. Conversely, the defendant regarded the plaintiff to be a party to the main sales contract. A fundamental fact is that, by its action, the plaintiff sought to establish that it had no debt obligations to the defendant arising from a sales contract. In such situation, according to Article 7(1)(a) of the Brussels I Regulation (recast), the jurisdiction lies with the Austrian courts since the place of performance of the sales contract was in Austria.
The decisive factor is that the plaintiff did not bring an action seeking a declaration of the existence of an agency contract. If this would be the subject of an action, then it will be for consideration under Article 7(1)(b) of the said Regulation, according to which ‘in case of the provision of services’ the place of performance shall be ‘the place in a Member State where … the services were provided or should have been provided’. If the plaintiff had brought the claim in this form, there was a chance that it would have been established that the place of supply of agency service was in Estonia and that the Estonian courts have the jurisdiction.
In the present case, the jurisdiction of the Estonian court must be dismissed. The conclusions of the lower courts were upheld, even though on a different legal basis.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.