JURE summary

JURE summary

I - The deadline to appeal the ruling by the Relação (hereinafter 'the Court of Appeal') which, having fully ruled on the appeal, analysed the matter of the international jurisdiction of the Portuguese courts, is 30 days (Article 638(1) of the CPC (¹)); Article 673 of the CPC does not apply, since it is only applicable to appeals of 'rulings issued when a case is pending in the Court of Appeal', that is, to appeals of interlocutory rulings issued by the Court of Appeal within the scope of analysing the main appeal, in which case the deadline is 15 days (Article 677 of the CPC).

II - Since the Brussels Convention (²), European jurisprudence has held the view that Article 18 of the Brussels Convention, which corresponds to Article 24 of the Brussels I Regulation (³) and Article 26 of the Brussels I Regulation (recast) (⁴), 'must be understood in the sense that it allows the defendant not just to contest the jurisdiction, but also, alternatively, to present a defence regarding the substantive matter of the case, without losing the right to invoke that the court does not have jurisdiction'.

III - The basis for this interpretation is that there are national laws which attribute unfavourable consequences to the omission of another defence, whenever the defendant only invokes that the court has no international jurisdiction and this defence is overruled; if another interpretation were made, the right to a proper defence would be harmed, forcing the defendant - who, despite the concerns of the Brussels I Regulation regarding legal stability, cannot anticipate how the court will rule - either to choose to present a defence against the substantive issue of the case, losing the right to invoke that the court has no jurisdiction, or to choose to invoke that is has no jurisdiction, with all the inherent risks.

IV - The Brussels I Regulation (recast ), like the Brussels I Regulation, adopted an autonomous concept of place of performance for cases based on the sale of goods or the provision of services, identifying the obligations which are characteristic of one (delivery of goods) and the other (provision of services) and relevant to justify a connection of the contract to a place which, on one hand, is sufficiently strong to justify a jurisdiction other than the one of the State of the defendant's domicile (as per Recital 16 of the Brussels I Regulation (recast)) and, on the other hand, for that same reason, safe enough to allow for a certain determination of which State is that whose courts have jurisdiction to try any claim arising from the contract in question.

V - The autonomous interpretation of Article 7(1)(b) of the Brussels I Regulation (recast), just as was understood under the terms of the identical rule of Article 5(1)(b) of the Brussels I Regulation, with the purpose of identifying the characteristic obligation of sales contracts and services contracts, must be made 'in the context of the origin, objectives and system of the Regulation'.

VI - Both Regulations moved away from the regime defined by the Brussels Convention, wherein they no longer use as a reference point, regarding sales and services contracts, the obligation under dispute in the court case, but instead use as a reference point the characteristic obligation of the contract, thereby imposing an autonomous definition of the 'place of performance as a criterion of connection to the court with jurisdiction in contractual matters'.

VII - The Court of Justice of the European Union has been confronted more than once with the need to find classification criteria, namely for situations in which the same contract includes the supply of goods with the rendering of services by the supplier, regarding the production of the supplier's own goods, such as in the present court case.

VIII - Considering that the present case deals with contracts whose object is the sale of goods that are to be produced or fabricated by the seller, according to models or prototypes, defined by the defendant, who ordered them from the plaintiff, in order to sell them to third parties, to be delivered in Spain, Portuguese courts do not have international jurisdiction to try the present case, since, both the defendant's domicile (registered address), and the relevant place of performance - place where the goods are to be delivered - are situated in Spain, (Article 4(1), Article 5(1) and Article 7(1)(b), second indent of the Brussels I Regulation (recast)).

(¹) Código de Processo Civil (Code of Civil Procedure)

(²) Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters

(³) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 

(⁴) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.