Article 5(3) 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 an action for damages founded on an abrupt termination of a long-standing business relationship is not, irrespective of how it is classified in national law, a matter relating to tort, delict or quasi-delict within the meaning of that regulation if a tacit contractual relationship existed between the parties, a matter which is for the referring court to ascertain. Demonstration of the existence of a tacit contractual relationship of that kind must be based on a body of consistent evidence, which may include in particular the existence of a long-standing business relationship, the good faith between the parties, the regularity of the transactions and their development over time expressed in terms of quantity and value, any agreements as to prices charged and/or discounts granted, and the correspondence exchanged.

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 a long-standing business relationship is to be classified as a ‘contract for the sale of goods’ if the characteristic obligation of the contract at issue is the supply of goods or as a ‘contract for the provision of services’ if the characteristic obligation is a supply of services, a matter which is for the referring court to determine.

In the first of those cases, classification as a sale of goods may be applied to a long-standing business relationship between two economic operators where that relationship is limited to successive agreements each having the object of the delivery and collection of goods. On the other hand, it does not correspond to the general scheme of a typical distribution agreement, characterised by a framework agreement the subject matter of which is an undertaking for supply and provision concluded for the future by two economic operators.

In the second case, regarding classification as a provision of services, the concept of services within the meaning of Article 5(1)(b) of the regulation requires at least that the party who provides the services carries out a particular activity in return for remuneration. The first criterion in that definition, namely the existence of an activity, corresponds, in the case of a contract whose subject matter is the distribution of one party’s products by the other party, to the characteristic service provided by the party who, by carrying out such distribution, is involved in promoting the spread of the products concerned as a result, in particular, of the fact, the finding of which falls within the jurisdiction of the national court, that the distributor may be able to offer customers services and benefits that a mere reseller cannot and thereby acquire for the supplier’s products a larger share of the local market. The criterion of remuneration provided as consideration for an activity cannot be understood in the strict sense of the payment of a sum of money. In that connection, account must be taken, in particular, of the fact that a distribution agreement is based, as a general rule, on a selection of the distributors by the supplier. That selection may confer a competitive advantage on the distributors in that they will have the sole right to sell the supplier’s products in a particular territory or, at the very least, a limited number of distributors will enjoy that right. Moreover, a distribution agreement often provides assistance to the distributors regarding access to forms of advertising, communication of know-how by means of training, or payment facilities. It is for the court adjudicating on the substance to ascertain the existence of those matters.

(see paras 35, 37-41, 44, operative part 2)