OLG Stuttgart; 2017-08-07; 5 U 188/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2017:0807.5U188.16.00
Date: 2017-08-07
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0807(51)_ENG_SUMJURE
JURE summary
JURE summary
A seller of LED lamps domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against a company domiciled in Switzerland (hereinafter ‘the defendant’) seeking the payment of a purchase price on the basis of two agreement on the delivery of LED lamps.
The plaintiff approached the Landgericht Hechingen (hereinafter ‘the Court of First Instance’) as the court competent under Article 23(1)(a) first alternative of the new Lugano Convention (1), claiming to have delivered goods free of any defects.
The defendant contested the international jurisdiction of the Court of First Instance stating that it had not accepted the conduct of the proceedings (default of appearance).
The Court of First Instance dismissed the action due to a lack of international jurisdiction, which, according to its opinion, resulted neither from Article 23(1)(a) first alternative nor Article 23(1)(c) of the new Lugano Convention.
The appeal of the plaintiff filed with the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) was successful.
The Court of First Instance in fact held international jurisdiction which followed from Article 5(1)(b) first indent of the new Lugano Convention. The place of performance was the domicile of the plaintiff in Hechingen due to an effectively concluded agreement between the plaintiff and the defendant providing for the Incoterm ‘Ex works’ as well as terms and conditions such as ‘the collection in Hechingen at the expense of the customer’ and ‘collection/no shipment’.
The Court of Justice of the European Union clarified unambiguously in one of its previous decisions (2) that the Incoterm ‘Ex works’ included not only the transfer of risk and division of costs, but also allowed for the place of the seller to be the place of delivery and taking the delivery.
Unless agreed otherwise, the respective purchase agreements were subject to Article 4(1)(a) of the Rome I Regulation (3).
The Court of Appeal annulled the decision of the Court of First Instance and referred the case back to the Court of First Instance for a new hearing and decision.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of  9 June 2011, Electrosteel Europe SA v Edil Centro SpA, C-87/10, ECLI:EU:C:2011:375.
(3) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).