1. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 1 - The place of delivery of goods CarTrim/Key Safety (ECJ 25 February 2010, Case nr. C 381/08) Hot Topics in Europe Consulegis European Regional Conference 2011 Hamburg/Moelln (11-12 February 2011)

2. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 2 - Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (EEX-Reg.) General Principles for Jurisdiction : Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State (article 2-1 EEX-Reg.). Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter (art.3 EEX-Reg.) This provision refers to: -Alternative jurisdiction (Section 2); - Specific jurisdiction for certain contracts (insurance contracts, consumer contracts, employment contracts); -Exclusive jurisdiction; -Prorogation of jurisdiction (forum clauses);

3. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 3 - Alternative jurisdiction for contractual relations : article 5-1 EEX- Regulation : General rule : A person domiciled in a Member State may, in another Member State, be sued in matters relating to a contract: in the courts for the place of performance of the obligation in question (article 5-1 a EEX-Regulation). Same rule as in the (former) Brussels 1968 Convention on Jurisdiction and Enforcement (EEX-Convention) : A person domiciled in a Contracting State may, in another Contracting State, be sued: in matters relating to a contract, in the courts for the place of performance of the obligation in question…. (art. 5.1 EEX-Convention).

4. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 4 - ECJ 6 October 1976 in Tessili Case no. C-12/96 (EEX - Convention): In contractual cases, the obligation on which the plaintiff bases his Court action has to be identified with reference to applicable international private law or applicable uniform international law, in order to determine the place of performance of the obligation in question and hence which Court has alternative jurisdiction. International Private Laws within EU: -Contracts before 17 December 2009: Convention of Rome of 1980 on law applicable to contractual relations, unless specific convention applicable (e.g. France: Hague Convention of 19 June 1955); -Contracts after 17 December 2009: Rome 1 Regulation (private international law on contractual relations); Uniform law (e.g. Vienna Convention on International Sales of Moveable Goods) Problem with this rule: a contractual relation consists mostly of multiple contractual obligations which under the aforementioned rule (Tessili case) often led to different courts having jurisdiction depending on the obligation at stake.

5. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 5 - For this reason the EU legislator introduced specific rules for 2 of the most common cross border transactions within the EU : Art. 5-1 b) EEX-Reg. defines the place of performance in question as referred to in art. 5-1 EEX-Reg. unless otherwise agreed for : For contracts of sale: as the place in a member state where, under a contract, the goods were delivered or should have been delivered; For provision of services in art. 5-1 b) EEX-Regulation: as the place in a member state where, under a contract the services were provided or should have been provided; If subparagraph art. 5-1 b) does not apply then the general rule of subparagraph (a) applies; However : Community legislator did not define the the place of delivery!

6. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 6 - How should the place of delivery under art. 5-1. b EEX-Reg. be determined? Possible approaches for determining place of delivery: Determination of the place of delivery according to the will of the parties? Reasoning: art. 5-1 b) refers to the agreement between the parties (e.g. BGH 1 June 2005, NJW- RR 2005, 1518 and House of Lords 20 Feb. 2008, IHR 2009,76); Problem: this would require the interpretation of the will of the parties which in its turn would lead to the need to determine the law applicable to the contract under ipr-rules of the lex fori (return to principles Tessili case), of which the outcome would be unpredictable. This solution would run against to objectives EU-legislator: i.e. to create objective criteria for determining the place of performance of the obligations for the most common form of contracts (contracts of sale) in order to promote legal certainty.

7. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 7 - Reference to international conventions: 1980 Vienna Convention on International Sales (Corte de Cassazione 14 June 2007, IHR 2009, 74); Principles of European Contract Law; Unidroit principles on international business contracts; However: only rules of reference, no hard law and moreover merely designed to allocate risks between the parties and not to determine place of delivery;

8. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 8 - Requirements of agreement on place of delivery between the parties as under art. 5-1 b) EEX-Regl. For example: Erfüllungsort Hamburg? Different case law in national Courts within EU. Germany, in the absence of other elements: in general not qualified as a clause for determining the place of delivery for the purpose of art. 5-1 b) EEX-Regl. Reasoning: the parties did not consider jurisdiction issues in drafting such clause. ECJ in C-106/95 (Judgment of 20 February 1997 in MSG/Les Gravières Rhénanes) on art. 5-1 EEX- Convention: a clause (The place of performance is Würzburg and the courts for that place have exclusive jurisdiction), which factiously (abstract agreement) determines the place of performance of an obligation without a relation with the material operations of performance should be qualified as a forum clause under art. 17 EEX-Conv. (now art. 23 EEX-Regl.), which is subject to specific formal conditions for its validity.

9. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 9 - Reference to Incoterms: Different case law within EU, but generally not sufficient for determining place of delivery under art. 5-1 b) EEX-Regl. Portuguese Courts and Koblens Court on ex-works: concerns allocation of risks and does not determine place of delivery. Cour dAppel Agen on CIF: clause concerns only allocation of risks and liability for transport and insurance costs. However BGH 22 April 2009 on FOB (in principle only applicable to transports over sea): place of delivery coincides with place of transfer of risk: place of shipping.

10. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 10 - Application of factual criteria : The place where the buyer materially acquires the powers to dispose of the goods or the place where the seller loses material control over the goods. Comments: serves legal certainty and creates jurisdiction of the courts which are in the proximity of the goods delivered. No need to address conflict rules of international private law/autonomous concept.

11. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 11 - Case C-386/05 Color Drack, paragraph 26 : In the context of Regulation No 44/2001, contrary to Lexxs submissions, that rule of special jurisdiction in matters relating to a contract establishes the place of delivery as the autonomous linking factor to apply to all claims founded on one and the same contract for the sale of goods rather than merely to the claims founded on the obligation of delivery itself. Case C-204/08 Rehder (paragraph 33) : The Court next noted that, regarding the place of performance of the obligations arising from contracts for the sale of goods, Regulation No 44/2001, in the first indent of Article 5(1)(b), defines that criterion of a link autonomously, in order to reinforce the objectives of unification of the rules of jurisdiction and predictability. Accordingly, in such cases the place of delivery of the goods is established as the autonomous linking factor to apply to all claims founded on one and the same contract of sale (Color Drack, paragraphs 24 and 26).

12. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 12 - CarTrim/Key Safety (ECJ 25 February 2010, Case nr. C 381/08) Request for a preliminary ruling by the Bundesgerichtshof: In the event of a contract for sale of goods, is the place of delivery under art. 5-1 b) EEX-Reg.: The place where the goods are handed over to the first carrier (cf. Art.31 Vienna Sales Convention); Or The place where the goods are materially handed over to the buyer?

13. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 13 - Approach by ECJ in Car Trim/Key Safety (Case C-381/08 of 25 February 2010): The first indent of Article 5(1)(b) of Regulation No 44/2001 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. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is 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. That criterion is highly predictable. It also meets the objective of proximity, in so far as it ensures the existence of a close link between the contract and the court called upon to hear and determine the case. It should be pointed out, in particular, that the goods which are the subject-matter of the contract must, in principle, be in that place after performance of the contract. Furthermore, the principal aim of a contract for the sale of goods is the transfer of those goods from the seller to the purchaser, an operation which is not fully completed until the arrival of those goods at their final destination.

14. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 14 - Consequences in practice after Car Trim/ KeySafety : Does the contract refer to a place of delivery? However without referring to the law applicable to the contract (factual notion); The Court does not give any criteria as to the conditions for the validity of such clause on the place of delivery. It follows from the considerations of Car Trim that the clause should be very clear. No room for interpretation under national or international sales law. Doubtful if inclusion of such clause in general terms and conditions or a commercial document, which refers to another place than the place of effective delivery is enforceable, especially when inclusion of such general terms and conditions is disputed and interpretation under national or international sales law is necessary; Incoterms: different interpretation by member states: most likely not sufficient in order to determine place of delivery; If no place of delivery indicated in the contract: place of delivery is the place where the goods materially were or should have been handed over to the buyer: usually the place of business of the buyer (e.g. delivery directly by the manufacturer not being the seller to the final client not being the buyer, the place of delivery is neither the place of the seller nor the place of the buyer, but the place of the final customer); Therefore in case of doubt about the will of the parties: reference to place of effective (physical) transfer of the goods as place of delivery under art. 5-1 b) EEX-Reg.

15. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 15 - THANK YOU FOR YOUR ATTENTION AND SPECIAL THANKS TO BRODERMANN & JAHN FOR THEIR HOSPITALITY!

16. Marinus Vromans Vanden Eynde Legal Brussels mv@vdelegal.be - 16 - Marinus VROMANS Advocaat – Avocat Vanden Eynde Legal Email: mv@vdelegal.bemv@vdelegal.be Website: www.vdelegal.bewww.vdelegal.be Tel: +32 (2) 290.04.00 Mobile: +32 477 705 328