EUPillar C-19/09 Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA (Third Chamber) [2010] ECR I-02121

Summary

This case on the special jurisdiction rule for provision of services contracts in Art 5(1)(b) of Brussels I was referred to the CJEU in proceedings between Wood Floor (established in Austria) and Silva Trade (established in Luxembourg), relating to a claim for compensation for the termination of a commercial agency contract performed in several MSs. In its action in Austria, Wood Floor relied on Art 5(1)(b) and claimed to have carried on business exclusively from its seat in Austria. Silva Trade challenged the Austrian courts’ jurisdiction by arguing that more than three quarters of Wood Floor’s turnover was generated in countries other than Austria, and that Art 5(1) does not expressly provide for such a case and jurisdiction must be determined under Art 2. The court rejected the plea of lack of jurisdiction. At the appeal, the referring court asked some questions to the CJEU. On the question whether the second indent of Art 5(1)(b) is applicable where services are provided in several MSs, the CJEU affirmed C 386/05 Color Drack and C-204/08 Rehder where it had held that in the light of the objectives of proximity and predictability, the rule in the first indent of Art 5(1)(b) is also applicable where there are several places of delivery of goods within a single MS. It noted that it had found in Rehder that the factors taken as a basis in order to arrive at the interpretation set out in Color Drack are also valid for the provision of services contracts, including the cases where such provision is not effected in a single MS, since the special jurisdiction rules provided in Brussels I for the sale of goods contracts and the provision of services contracts have the same origin, pursue the same objectives and occupy the same place in the scheme of Brussels. It reaffirmed Rehder that there is no basis in Brussels I to apply a differentiated approach to the objectives of proximity and predictability where the services are provided at several places in different MSs and such an approach indeed would run counter to Brussels I’s purpose. It held that the second indent of Art 5(1)(b) is applicable in the case in which services are provided in several MS. On the question on the basis of what criteria the place of performance of the obligation is to be determined in the case of a commercial agency contract, it stated that the interpretation given in Color Drack for the sale of goods contracts is applicable to the provision of services contracts and found that the ‘place of performance’ is the place with the closest linking factor, which, as a general rule, will be at the place of the main provision of services. It observed that, in a commercial agency contract, the characteristic performer is the commercial agent and therefore, the ‘place of performance’ is, in principle, the place of the main provision of services by the agent. As regards the criteria according to which the place of the main provision of services must be determined, the CJEU stated that it has to be identified on the basis of that contract. If it cannot be determined on this basis, the CJEU stated that it is to be determined on the basis of the place of actual performance, ie the place where the agent has in fact for the most part carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as it appears from the provisions of the contract. If that place cannot be determined on this basis either, AG Trstenjak suggested that it is the place where the commercial agent has its registered office. But, sadly, the CJEU did not agree with the AG and stated that it is where that agent is domiciled on the ground that it can always be identified with certainty, is predictable, and has a link of proximity with the dispute. The CJEU dealt with the case in about 14 months.