EUPillar BGH, 22.4.2009 – VIII ZR 156/07

Summary

The plaintiff, a German company, brought an action for payment of the purchase price. The defendant is an English company based in London. The purchase claims had been assigned to the plaintiff by two Turkish companies. It was uncertain where the place of the delivery within the meaning of Art. 5 no. 1 (b) was if the parties had used the Incoterm ‘FOB’. The court held that even though the plaintiff wasn’t a party of the purchase contract concluded between the buyer and the Turkish companies it was relevant to determine the place of jurisdiction between these primary parties. Also, the court found that the place where the goods should have been delivered within the meaning of Art. 5 no. 1 (b) Brussels I was the port of shipment if the parties had concluded a purchase contract including the Incoterm ‘Free on Board’. If this place was outside the scope of application of the Brussels I-Regulation the court had to apply Art. 5 no. 1 (a) instead of (b) Brussels I. The first assumption concerning the decisive place of jurisdiction is in accordance with the jurisdiction of the CJEU (C-433/01) where the court stated that the assignee was allowed to bring an action against the debtor if the rule on jurisdiction didn’t have the purpose of protection of the prior creditor. The venue for contractual litigations according to Art. 5 no. 1 Brussels I exists because of the close connection between the contract and the court of the place of performance (see CJEU C-386/05). The court’s assumption therefore is correct. The interpretation concerning the place where the goods have to be delivered (here: port of shipment) provides legal security and predictability of the place of jurisdiction: the parties are able to define the port of shipment clearly. Further, the place has a close connection with the contract because it is the place of the moment that marks the taking of risk of loss by the buyer. In this regard the court’s judgment is correct. It is, in fact, not clear if Art. 5 no. 1 (a) Brussels I can be applied when the delivery place is in a third state. This question isn’t answered uniformly in German literature. On the one hand the wording ‘in a Member State’ not existing in Art. 5 no. 1 (a) first indent Brussels I seems to speak for this interpretation. On the other hand this could promote frictions between the letters (a) and (b) of Art. 5 Brussels I. This question should have been discussed by the court more extensively.