PIL instrument(s)

Case number and/or case name

OLG Köln, 30.4.2007 – 16 U 50/06

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

29 April 2007

Appeal history

CJEU's case law cited by the court

Summary

The parties argued on contractual payment claims. The defendant had ordered a machine by the plaintiff. The contract between the parties contained the plaintiff’s obligation of the machine’s first commissioning and an instruction of the defendant’s employees. The machine has been transported to Poland but neither the commissioning nor the instruction has taken place. It was doubtful whether German courts had international jurisdiction. The first instance court denied it. The Higher Regional Court contested the Regional Court’s judgment and confirmed the international jurisdiction of German courts. It held that for the distinction between Art. 5 no. 1 (b) first and second indent Brussels I in mixed contracts containing elements of a purchase contract as well as elements of a service contract the main and characteristic performance was decisive. The court’s interpretation introduces a clear criterion for the determination of the contract type. This is in accordance with settled case law of the CJEU. In the present case the obligations to commissioning and instruction had a subordinate relevance to the contract. The focus was on the purchase of the machine.