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| An Italian seller and an English buyer concluded a contract for the sale of cloth. Since the buyer refused to pay the purchase price, the seller brought an action against it before an Italian Court.
The Court denied having jurisdiction to hear the case on the basis of the European Council Regulation (no. 44/2001) on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters, which has replaced the 1968 Brussels Convention. In reaching this conclusion, the Court found that, contrary to the Brussels Convention where it was merely stated that a person domiciled in a contracting State may be sued in the Court for the place of performance of the obligations in question, the EU Regulation expressly provides that, in the case of a sales contract, the place for performance is the place "where the goods were delivered or should have been delivered" (Art. 5 (1)(b)). Taking into account that, in order to determine jurisdiction, the only decisive factor is the place for delivery and that, in the case at hand, that place was in England, the Italian Court declared not to have jurisdiction over the case. Nor did the Court follow the seller's contention that the notion of "delivery" set out in Art. 5 (1) (b) of the European Regulation should have been interpreted in accordance with CISG - to be considered as applicable to the merits of the dispute - and in particular with its Art. 31(a). It is true that under Art. 31(a) CISG, if the contract involves carriage of goods and there is no contrary agreement of the parties, the place for delivery is the place where the goods have been handed over to the first carrier for transmission to the buyer (in the case at hand, Italy). Since, however, by virtue of its own nature the EU Regulation prevails over both domestic and international law, CISG cannot be used as a means for interpreting it and therefore, the concept of "delivery" contained in the EU Regulation has to be interpreted autonomously. |