Italian jurisdiction – contract of sale – place of delivery – injunction of payment
Court of cassation, joint chambers, 5 October 2009, no. 21192
Pursuant to article 5(1)(b), second part of the EC Regulation No 44/2001 of 22 December 2000, in the case of an international sale of movable goods, the place of delivery is the one where the goods have come into the material, and not only the juridical, availability of the buyer. Therefore, any possible dispute concerning the execution of the contract, including the payment of the price, must be brought before the judge of the State of the final destination, irrespective of where the goods have been handed over to the first carrier.
The Italian Supreme Court has recently modified its previous case law, according to which the place of delivery was the place where the goods had been handed over to the first carrier. The above decision has the same content as the decision 5 October 2009, no. 21192.On the basis of the previous case law, it was possible to sue in Italy a foreign defendant domiciled in another EU member state, because in most cases the goods were, or should have been, handed over to the first carrier in Italy. According to art. 5 of the EC Regulation No 44/2001, there is an assumption that all the obligations arising from a contract of sale are considered to be executed at the place of the delivery. The consequence of the new finding is that in respect of a contract for the sale of goods, Italian courts do not have jurisdiction over a foreign debtor domiciled in another EU state, if the goods have been, or should have been, delivered to such a country. That means that, if an injunction of payment has been issued under the above circumstances, the foreign buyer can file an opposition based on lack of jurisdiction of the Italian court, and ask for the revocation of the injunction. The relevant term to file the opposition is 50 days from the notification of the injunction. Practically, the Italian Supreme Court has decided to follow the decision 3 May 2007 no. C 386/05 (« Color Drack ») of the European Court of Justice, according to which, in the case of goods to be delivered from a country to different places in another country, the competent judge is the judge of the place where the main delivery took place. Therefore, it was implicitly recognized that the place of delivery must be intended as the place of the final destination.