PIL instrument(s)

Case number and/or case name

OLG Köln, 14.3.2005 – 16 U 89/04

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

13 March 2005

Appeal history

CJEU's case law cited by the court

Summary

The plaintiff is an Italian company, the defendant is a Spanish company with a supplier firm in Cologne, Germany. On order of the latter, the plaintiff provided 200 prototypes of a window regulator to the supplier firm. Not having received any payment, the plaintiff now sues the defendant for payment of the agreed price. In the first instance, the international jurisdiction of German courts was declined. The plaintiff now appeals against this decision. The court of appeal confirms the decision of the previous instance. It bases its opinion on Art. 5(1)(b) Brussels I Regulation and determines the place of performance autonomously based on the service conforming the contract. This is the development and delivery of prototypes of car window lifters. The court regards this performance as service within the meaning of Art. 5(1)(b) second indent as the development and production has a higher priority than the sale components of the contract. Consequently, the court doesn’t regard Cologne as the place of performance as no service was performed there except for the delivery which is only an accessory component of the contract. Rather, the plaintiff’s factory in Italy is the place of performance as this is where the development and production of the product took place. The court states correctly that the place of performance is determined uniformly for all obligations deriving from the contract. No distinction is made between the service and the obligation of payment for the service. Although the court could have referred to the CJEU’s jurisdiction to Art. 13(3) Rome Convention of 1980 when defining “services” within the meaning of Art. 5(1)(b) Brussels I, this doesn’t change the outcome. As today such contracts for work and materials are unanimously qualified as services, the judgment can’t be doubted. However, in 2005 a CJEU judgment regarding the interpretation of Art. 5(1)(b) second indent was not issued. In the decision the court refers to when interpreting the term 'services', the German Federal Court of Justice discusses a preliminary ruling on this subject but declines it because of the lacking competence of the CJEU to interpret the Rome Convention of 1980.