EUPillar OLG Hamm, 26.3.2012

Summary

The plaintiff runs his business in Germany where he produces detergents. The defendant is based in Belgium and produces lactic acid. The plaintiff ordered the lactic acid from the defendant with the delivery condition “CPT H”. The confirmation by the defendant included the expression “Incoterm CPT”. After consumers complaining about the products’ smell the plaintiff claimed for damages. The Regional Court denied the international jurisdiction of German courts. The Higher Regional Court on the contrary affirmed it pursuant to Art. 5 no. 1 (a), (b) Brussels I. It stated that the place where the goods were delivered within the meaning of Art. 5 (b) Brussels I was Germany. The Court referred to the jurisdiction of the CJEU in Car Trim (C-381/08) according to which the place where the goods were delivered or should have been delivered in Art. 5 Brussels I was the place where the goods are handed over or should have been handed over to the buyer. The Court denied the existence of an agreement between the parties concerning the place where the goods have to be delivered to. Among to the court the Incoterm-clause “CPT” couldn’t be interpreted as an agreement on the place of performance of the obligation but solely as an agreement on the costs of delivery and the risks of loss. The court refers to the jurisdiction of the CJEU in a number of aspects. The court says that among to the jurisdiction of the CJEU the relevant place for the determination of the place where the goods were delivered doesn’t mean the place of the contractual performance of the seller if there has been no agreement between the parties on this point. The determination of the place of the seller’s contractual performance would be among the CJEU jurisdiction not sufficient to establish an agreement on the place where the goods have to be delivered. Therefore the interpretation by the national court seems comprehensible and agrees with the understanding of the CJEU.