EUPillar BGH, 9.7.2008 – VIII ZR 184/07

Summary

The plaintiff brought an action for damages. The parties had agreed that the plaintiff had to build components for airbag systems which the defendant then ordered by the plaintiff and sold to automobile manufacturers. The Regional Court as well as the Higher Regional Court denied the international jurisdiction of German courts. The Federal Court of Justice made a preliminary reference concerning the following questions: 1. Is Art.5(1)(b) Brussels I to be interpreted as meaning that contracts for the supply of goods to be produced or manufactured are, notwithstanding specific requirements on the part of the customer with regard to the provision, fabrication and delivery of the components to be produced, including a guarantee of the quality of production, reliability of delivery and smooth administrative handling of the order, to be classified as a sale of goods (first indent), and not as provision of services (second indent)? What criteria are decisive for the distinction? 2. If a sale of goods is to be presumed: in the case of sales contracts involving carriage of goods, is the place where under the contract the goods sold were delivered or should have been delivered to be determined according to the place of physical transfer to the purchaser, or according to the place at which the goods were handed over to the first carrier for transmission to the purchaser? The CJEU answered the questions in C-381/08 (Car Trim): 1. Art. 5(1)(b) Brussels I must be interpreted as meaning that where the purpose of contracts is the supply of goods to be manufactured or produced and, even though the purchaser has specified certain requirements with regard to the provision, fabrication and delivery of the components to be produced, the purchaser has not supplied the materials and the supplier is responsible for the quality of the goods and their compliance with the contract, those contracts must be classified as a ‘sale of goods’ within the meaning of the first indent of Article 5(1)(b) of that regulation. 2. The first indent of Article 5(1)(b) must be interpreted as meaning that, in the case of a sale involving carriage of goods, the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction. After this judgment the plaintiff has withdrawn the appeal.