ELECTROSTEEL EUROPE SA V EDIL CENTRO SPA

Case C-87/10, European Court of Justice, Opinion of Advocate General Kokott, 3 March 2011

Sale of goods - Jurisdiction - Incoterms - Ex works - Place of performance of the obligation - Place of delivery - Use of Incoterms to determine the meaning of place of delivery Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments, article 5(1)(b)

This was the opinion of the Advocate General in response to a reference for preliminary ruling from the Tribunal of Vicenza. The case concerned a supply contract containing a clause stating that delivery was to be "free from the seller's premises" to a carrier, and the question was whether this would call into play article 5(1)(b) to permit a jurisdiction additional to the domicile of the defendant. Article 5(1)(b) provided for jurisdiction for the court of the place of the performance of the obligation, meaning "in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered". The European Court of Justice in Car Trim GmbH v KeySafety Systems SA Case 381/08 had in February 2010 determined that this 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 without reference to the substantive law applicable to that contract, or failing that, the place of delivery would be 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. The question arose in this case whether the stipulation by the ECJ that the place of delivery must be determined without reference to the substantive law of the contract also meant that the place of delivery was to be determined without reference to Incoterms.