#5059 - Color Drack - Conflict of Laws BCL

Color Drack (2007)

Facts

Proceedings between Color Drack GmbH ('Color Drack'), a company established in Schwarzach (Austria), and Lexx International Vertriebs GmbH ('Lexx'), a company established in Nuremberg (Germany), concerning the performance of a contract for the sale of goods, under which Lexx undertook to deliver goods to various retailers of Color Drack in Austria, inter alia in the area of the registered office of Color Drack, which undertook to pay the price of those goods.

The dispute concerns in particular the non-performance of the obligation to which Lexx was subject under the contract to take back unsold goods and to reimburse the price to Color Drack.

By reason of that non-performance, on 10 May 2004 Color Drack brought an action for payment against Lexx before the Bezirksgericht St Johann im Pongau (Austria) within whose jurisdiction its registered office is located… The appeal court took the view that a single linking place, as provided for in the first indent of Article 5(1)(b) of Regulation No 44/2001 for all claims arising from a contract for the sale of goods, could not be determined where there were several places of delivery.

Question

Is Article 5(1)(b) of [Regulation No 44/2001] to be interpreted as meaning that a seller of goods domiciled in one Member State who, as agreed, has delivered the goods to the purchaser, domiciled in another Member State, at various places within that other Member State, can be sued by the purchaser regarding a claim under the contract relating to all the (part) deliveries - if need be, at the plaintiff's choice - before the court of one of those places (of performance)?

Holding

Only considers the question of several places of delivery within a member-state

As a preliminary point, it must be stated that the considerations that follow apply solely to the case where there are several places of delivery within a single Member State and are without prejudice to the answer to be given where there are several places of delivery in a number of Member States.

Art. 5(1)(a) and Art. 5(1)(b) were intended to override Tessili and CMC

In that regard, it is appropriate to take into consideration the origins of the provision under consideration. By that provision, the Community legislature intended, in respect of sales contracts, expressly to break with the earlier solution under which the place of performance was determined, for each of the obligations in question, in accordance with the private international rules of the court seised of the dispute. By designating autonomously as 'the place of performance' the place where the obligation which characterises the contract is to be performed, the Community legislature sought to centralise at its place of performance jurisdiction over disputes concerning all the contractual obligations and to determine sole jurisdiction for all claims arising out of the contract.

Art. 5(1)(b) applies even for multiple places of delivery

First of all, the first indent of Article 5(1)(b) of the regulation must be regarded as applying whether there is one place of delivery or several.

By providing for a single court to have jurisdiction and a single linking factor, the Community legislature did not intend generally to exclude cases where a number of courts may have jurisdiction nor those where the existence of that linking factor can be established in different places.

Principal place of delivery test

Consequently, the first indent of Article 5(1)(b) of Regulation No 44/2001 is applicable where there are several places of delivery within a single Member State.

However, it cannot be inferred from the applicability of the first indent of Article 5(1)(b) of Regulation No 44/2001 in circumstances such as those of the main proceedings that that provision necessarily confers concurrent jurisdiction on a court for any place where goods were or should have been delivered.

In that regard it is necessary to take account of the fact that the special jurisdiction under the first indent of Article 5(1)(b) of Regulation No 44/2001 is warranted, in principle, by the existence of a particularly close linking factor between the contract and the court called upon to...