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Color Drack Notes

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COLOR DRACK (2007) FACTS Proceedings between Color Drack GmbH ('Color Drack'), a company established in Schwarzach (Austria), and Lexx International Vertriebs GmbH ('Lexx'), a company established in Nuremberg (Germany), concerning the performance of a contract for the sale of goods, under which Lexx undertook to deliver goods to various retailers of Color Drack in Austria, inter alia in the area of the registered office of Color Drack, which undertook to pay the price of those goods. The dispute concerns in particular the non-performance of the obligation to which Lexx was subject under the contract to take back unsold goods and to reimburse the price to Color Drack. By reason of that non-performance, on 10 May 2004 Color Drack brought an action for payment against Lexx before the Bezirksgericht St Johann im Pongau (Austria) within whose jurisdiction its registered office is located… The appeal court took the view that a single linking place, as provided for in the first indent of Article 5(1)(b) of Regulation No 44/2001 for all claims arising from a contract for the sale of goods, could not be determined where there were several places of delivery. QUESTION Is Article 5(1)(b) of [Regulation No 44/2001] to be interpreted as meaning that a seller of goods domiciled in one Member State who, as agreed, has delivered the goods to the purchaser, domiciled in another Member State, at various places within that other Member State, can be sued by the purchaser regarding a claim under the contract relating to all the (part) deliveries - if need be, at the plaintiff's choice - before the court of one of those places (of performance)?
HOLDING Only considers the question of several places of delivery within a member-state As a preliminary point, it must be stated that the considerations that follow apply solely to the case where there are several places of delivery within a single Member State and are without prejudice to the answer to be given where there are several places of delivery in a number of Member States. Art. 5(1)(a) and Art. 5(1)(b) were intended to override Tessili and CMC

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