Italian jurisdiction - contract for the execution of services
Tribunal of Arezzo
Judgement no. 470/07 - TFL Srl counsel: Avv N. Di Bella v. CBS Sarl counsel: Avv. A. Braggion
According to article 5 paragraph no. 1(b) of the EC regulation no. 44/2001, 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, that, in the case of the provision of services, is the place in a Member State where, under the contract, the services were provided or should have been provided.
In case of a contract for the execution of consulting services (specifically, engineering projects), the judge of the country where the obligation which is the object of the claim must be executed, has jurisdiction over the claim. In the case of a claim for damages, the object of the claim refers to the obligation that has not been fulfilled.
If the activity of a consultant consists of different services that must be carried out in different places, it must be avoided that the consultant can be sued in any of these countries. Therefore, the courts of country where the consultant had his office when he was appointed, have jurisdiction, because it is in the above country that the consultant has executed the services necessary to perform his task.If the task involves also some ancillary activities that must be carried out in the client's country, such as inspection of the construction site, participation to meetings, delivery of the projects, the services are considered nevertheless to have been executed in the country where the office of the consultant is located.
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The above decision relates to the application of the EC regulation no. 44/2001 to consulting activities.
An Italian company appointed a French company to execute some projects concerning wooden structures to be incorporated into some buildings in Italy. The consulting activity was connected to a contract for the exploitation of some patents entered into between the French company and a Swiss company.
The Italian company sued the French company in Italy for breach of contract, claiming that the projects were defective or had not been delivered within the time agreed upon, and asked for damages.
The French company raised the objection of lack of jurisdiction because its activity had been carried out exclusively in France. On the contrary, according to the claimant, the above activity had been carried out in Italy, because the obligation of the consultant was fulfilled only upon the delivery of the projects to the offices of the Italian company. In addition, the claimant pointed out that the task of the French company involved some ancillary activities that had been carried out in Italy, such the inspection of the construction sites, the participation to meetings, etc., but the Court held that such activities were irrelevant for the purpose of determining the place where the services had been carried out. The Court specifically recalled a decision of the Italian Court of Cassation, issued pursuant to the Brussels Convention of 1968, previously in force, according to which, when the activity of the consultant should be carried out in different places, and it is in connection with more than one among these activities, or even to the activity on its whole, that the client complaints that the behaviour of the consultant was negligent, the rule laid down by article 5 of the Convention must be applied in such a way as to exclude that the consultant could indifferently be sued in any of these places. Therefore, the criterion to determine the judge having jurisdiction upon the claim is that of the place where the consultant had his office when he received the task: that is in fact the place where he has carried the activities that were from time to time necessary to perform his task.