The Italian “dark period” following the 2010 Car Trim decision by the ECJ[1] appears to have come to an end.
At least, as far as the consideration to the final physical point of destination of sold goods is concerned, in ascertaining a court jurisdiction failing any contractual provision.
As the reader would remember (see our post https://www.lexmill.com/incoterms-are-not-enough-to-identify-the-place-of-delivery/) the Italian courts soon aligned. With a bit of excessive zeal, though. Since, the final-destination criteria found extensive application, even when the contract expressly referred to Incoterms. That was patently wrong (in particular having in mind the Electrosteel case, another cornerstone decision by the ECJ[2]).
Well, now the Italian Cassation has come to terms with it. In their decision 11346/23[3], the judges changed their previous orientation, and concluded that unless otherwise provided for in a sale contract, an EXW Incoterms clause actually identifies the place of delivery (i.e. the seller’s premises) – and so determines which is the court having (alternative) jurisdiction under art. 7 of EU Regulation 1215/12 (so called Brussel I Regulation).
The case was relating to a supply of mineral water from an Italian supplier to a French company based in Versailles. In 2016 the Italians obtained a payment order by an Italian tribunal, for some €140k as the price of unpaid supplies. The buyer opposed that the contract did not proved for any competent court, therefore only the court in Versailles should be competent, either as the defendant’s, or the goods-final-destination court.
The Italians recalled the fact that the supplies were clearly made on an Incoterms EXW basis. In vain, though – since both the first instance, and the appellate courts ruled in favor of the buyer. The issue eventually came in front of the Cassation court in unified chambers, which reviewed those decisions, and set new guidelines for future lower courts’ judgements.
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[1] ECJ judgment of Feb 25, 2010 in case C-381/08, Car Trim.
[2] ECJ judgment of June 9, 2011 in case C-87/10, Electrosteel.
[3] Cassation court (IT) decision of May 2nd, 2023 in case Tavina spa v Plaisir Selection International sarl.
