CAR TRIM GMBH V KEYSAFETY SYSTEMS SRL

[2009] EUECJ Case C-381/08, Opinion of Advocate General Mazak, 24 September 2009

Jurisdiction - Matters relating to a contract - Place of performance of the obligation - Contract for car parts manufactured to specification to be delivered free works - Whether sale of goods or supply of services - Council Regulation (EC) No 44/2001 article 5(1)(b)

The claimant in the original proceedings had sold car components to the defendants according to specification over a period of 18 months, under five framework delivery contracts, free works Colleferro (in Italy). Upon the defendant's termination of the contracts, the claimant commenced proceedings in the court of its production facility in Germany. According to Regulation (EC) No 44/2001, if the contract was one for the sale of goods, the defendant could be sued the place of delivery of the goods, and under a contract for the supply of services, the defendant could be sued in the place where the services were to be provided. The defendant argued that the German court did not have jurisdiction because the place of delivery was in Italy. This was the reference for a preliminary ruling on two issues from the Bundesgerichtshof of Germany. The Advocate-General's opinion proposed the following answers to the questions referred. (1) Article 5(1)(b) of Regulation (EC) No 44/2001 must be interpreted as meaning that contracts for the delivery of goods to be produced or manufactured are to be classified as a sale of goods, notwithstanding specific requirements by the customer with regard to the provision, fabrication and delivery of the components to be produced, including a guarantee of the quality of production; (2) The wording "the place in a Member State where, under the contract, the goods were delivered or should have been delivered" in the first indent of article 5(1)(b) of Regulation (EC) No 44/2001 must be interpreted as referring to the place where the goods are or should have been physically handed over to the purchaser.