Summary
In 2010, a Polish company sued an Italian company, in the Polish court, due to the defendant’s breach of contract by failing to pay for the goods delivered. The court of first instance stated that Art. 2 par. 1 of the Brussels I Regulation shall not be applicable in this case, because the defendant is domiciled in Italy, not in Poland. Consequently, the court of first instance found that the Italian company could be sued in the Polish court only by virtue of the rules set out in articles 5 to 24 of the Brussels I Regulation. According to Article 5 point 1 a person domiciled in a Member State can be sued in another Member State in the courts for the place of performance of the obligation in question. The place of performance of the obligation in question shall be, in the case of sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered. In this case, the parties agreed that the goods shall be delivered to the Netherlands by an independent company. In light of this, the court of the first instance has stated that it had no jurisdiction under Art. 5 point 1 of the Brussels I Regulation. The plaintiff appealed against the first-instance judgment and emphasised that the place of performance of the obligation was in Poland. The second-instance court agreed with the arguments presented by the Polish company. The court pointed out that the procedural provisions do not determine the place of performance. In this case, in order to determine the place of performance of the obligation in question, the provisions of the Vienna Convention should have been applied. According to Art. 31 of the Vienna Convention, if the contract of sale involves carriage of the goods and if the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists of handing the goods over to the first carrier for transmission to the buyer. Given the above, the place of performance was in Poland so Art. 5 point 1 should have been applied.