The plaintiff brought an action for damages because of an alleged defect of a software program that has been developed by the defendant. The court had to consider the international jurisdiction of German courts pursuant to Art. 5 Brussels I. The first instance court denied the international jurisdiction of German courts.
The court held that claims from a contract regarding the development of software fell under the jurisdiction established by Art. 5 no. 1 (b) second indent Brussels I (‘provision of services’). The place where the service has been provided was the place of the local emphasis of the activity. Further, in software development contracts the place of the development was decisive for the determination of the venue.
In contracts concerning the software development there is a noticeable focus on the activity of developing. Therefore the emphasis in these cases lies on the service rather than on the sale of the final product. In the place of development the creator stores the necessary instruments and there also is his development team. The emphasis therefore generally lies in that place. The judgment therefore is correct.