Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA.
Date: 2010-03-11
22. In that connection, it should be noted, first of all, that in the judgment in Color Drack  the Court held that the rule of special jurisdiction set out in Article 5(1) of the regulation in matters relating to a contract, which complements the rule that jurisdiction is generally based on the defendant’s domicile, reflects an objective of proximity and the reason for that rule is the existence of a close link between the contract and the court called upon to hear and determine the case ( Color Drack , paragraph 22; Case C-204/08 Rehder  [2009] ECR I-0000, paragraph 32; and Case C-381/08 Car Trim  [2010] ECR I-0000, paragraph 48).
23. The Court also observed that, regarding the place of performance of the obligations arising from contracts for the sale of goods, the regulation, in the first indent of Article 5(1)(b), defines that criterion of a link autonomously, in order to reinforce the objectives of unification of the rules of jurisdiction and predictability. Accordingly, in such cases the place of delivery of the goods is established as the autonomous linking factor to apply to all claims founded on one and the same contract of sale ( Color Drack , paragraphs 24 and 26; Rehder , paragraph 33; and Car Trim , paragraphs 49 and 50).
24. In the light of the objectives of proximity and predictability, the Court held that the rule set out in the first indent of Article 5(1)(b) of the regulation is also applicable where there are several places of delivery of goods within a single Member State, since one court must have jurisdiction to hear all the claims arising out of the contract ( Color Drack , paragraphs 36 and 38, and Rehder , paragraph 34).
25. Second, the Court then held that the factors which it took as a basis in order to arrive at the interpretation set out in Color Drack  are also valid with regard to contracts for the provision of services, including the cases where such provision is not effected in a single Member State ( Rehder , paragraph 36).
26. The rules of special jurisdiction provided for by the regulation for contracts for the sale of goods and the provision of services have the same origin, pursue the same objectives and occupy the same place in the scheme established by that regulation ( Rehder , paragraph 36).
28. In addition to the fact that it finds no basis in the provisions of the regulation, such a differentiated approach would run counter to the purpose which determined the adoption of that regulation, which, by unifying the rules governing conflict of jurisdiction in civil and commercial matters, contributes to the development of an area of freedom, security and justice, as well as to the proper functioning of the internal market within the Community, as it is clear from recitals 1 and 2 in the preamble to the regulation ( Rehder , paragraph 37).
31. In that connection, it must be recalled, in the first place that, in the judgment in Color Drack , the Court held, for the purposes of applying the rule of jurisdiction laid down in the first indent of Article 5(1)(b) of the regulation concerning the sale of goods, that where there are several places of delivery of the goods the ‘place of performance’ must be understood as the place with the closest linking factor between the contract and the court having jurisdiction and, as a general rule, it will be at the place of the principal delivery, which must be determined on the basis of economic criteria ( Color Drack , paragraph 40).
33. Accordingly, for the purposes of applying the rule of special jurisdiction in matters relating to a contract, laid down in the second indent of Article 5(1)(b) of the regulation, concerning the provision of services, when there are several places of delivery of the goods the ‘place of performance’ must be understood as the place with the closest linking factor, which, as a general rule, will be at the place of the main provision of services.
34. In the second place, it must be stated that, in a commercial agency contract, it is the commercial agent who performs the obligation which characterises that contract and who, for the purpose of applying the second indent of Article 5(1)(b) of the regulation, provides the services.
38. Having regard to the objective of predictability laid down by the legislature in recital 11 in the preamble to the regulation, and taking account of the wording of the second indent of Article 5(1)(b), according to which it is the place in a Member State where, under the contract, the services were provided or should have been provided which is decisive, the place of the main provision of services must be deduced, in so far as possible, from the provisions of the contract itself. Thus, in the context of a commercial agency contract, the place where the agent was to carry out his work on behalf of the principal, consisting in particular in preparing, negotiating and, where appropriate, concluding the transactions for which he has authority has to be identified, on the basis of that contract.
40. If the provisions of a contract do not enable the place of the main provision of services to be determined, either because they provide for several places where services are provided, or because they do not expressly provide for any specific place where services are to be provided, but the agent has already provided such services, it is appropriate, in the alternative, to take account of the place where he has in fact for the most part carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as it appears from the provisions of the contract. For that purpose, the factual aspects of the case may be taken into consideration, in particular, the time spent in those places and the importance of the activities carried out there. It is for the national court seised to determine whether it has jurisdiction in the light of the evidence submitted to it ( Color Drack , paragraph 41).
41. Fourth, if the place of the main provision of services cannot be determined on the basis of the provisions of the contract itself or its actual performance, the place must be identified by another means which respects the objectives of predictability and proximity pursued by the legislature.
42. For that purpose, it will be necessary for the purposes of the application of the second indent of Article 5(1)(b) to consider, as the place of the main provision of the services provided by a commercial agent, the place where that agent is domiciled. That place can always be identified with certainty and is therefore predictable. Moreover, it has a link of proximity with the dispute since the agent will in all likelihood provide a substantial part of his services there.
43. Having regard to all the above considerations, the answer to the Question 1(b) is that the second indent of Article 5(1)(b) of the regulation must be interpreted as meaning that where services are provided in several Member States, the court having jurisdiction to hear and determine all the claims based on the contract is the court within whose jurisdiction the place of the main provision of services is situated. For a commercial agency contract, that place is the place of the main provision of services by the agent, as it appears from the provisions of the contract or, in the absence of such provisions, the actual performance of that contract or, where it cannot be determined on that basis, the place where the agent is domiciled.
Question 1(c) and Question 2