EUPillar BGH, 23.6.2010 – VIII ZR 135/08

Summary

The plaintiff was a commercial agent of the defendant. The contract between the parties was canceled. During the agent's activities for the defendant the plaintiff bought wood products from the defendant for his own account which resulted in two outstanding purchase price claims. The plaintiff argues that the claims are extinguished because of a declared offset with his counterclaims. He sues for declaratory relief to determine that he does not owe any money to the defendant. The previous instance stated that the action was inadmissible because there was no international jurisdiction in favor of German courts based on Art. 5 et seq. The court based its decision especially on Art. 5 no. 1 (b) where the term in question was the place where the goods were delivered according to the contract. It interpreted this term as the place where the goods were transferred to the shipper. This place didn’t lie in Germany, therefore German courts did not have international jurisdiction. The court had to consider whether the German courts had international jurisdiction pursuant to Art. 5 no. 1 (a), (b) Brussels I. The court referred to a preliminary ruling of the CJEU in 2010 (C-381/08). According to the preliminary ruling the place of delivery has to be determined autonomously. If this was not possible, the place of delivery was the place where the purchaser obtains actual power of disposal over the product. In the case of a sale to destination the determination of the place of performance of the obligation within the meaning of Art. 5 no. 1 (a) (b) Brussels I the connecting factor is the place where the purchaser gains (or according to the contract should have gained ) actual power of disposal over the goods. The special venue based on Art. 5 no. 1 (a), (b) grants jurisdiction over every action derived from one and the same contract of sales of goods regardless of the type of action or legal protection. The judgment is correct as Art. 5 no. 1 (a), (b) intends to establish jurisdiction over every dispute arising from one particular contract. The CJEU states this in the C-386/05. The autonomous determination of the place of performance of the obligation in cases of a sale to destination is not unanimously accepted. Some parts of the literature resort to the substantive law applicable to the contract. Still the strongest arguments (e.g. the legislative history starting with the French Art. 46 C. proc. civ.) are supporting the autonomous determination that ties to the place where the purchaser gains actual power of disposal.