1. The case study: A construction site in Germany was not enough
For a construction project in Germany, a German company sourced aluminium windows and lift-and-slide doors from a Polish supplier. A German installation firm was commissioned as a subcontractor to carry out the fitting and sealing work. After installation, leaks became apparent. The client made a claim against the German company for the defects.
The company subsequently sued both the supplier and the fitter jointly in Germany for compensation for damages and for an advance payment towards the costs of rectifying the defects. Both contractual relationships related to the same construction project and, in part, to the same components. Furthermore, in the previous proceedings against the client, it had not been conclusively established who had caused the damage.
The Regional Court (LG) of Siegen dismissed the claim against the Polish supplier as inadmissible in a final judgment (LG Siegen, Ref. 5 O 152/25). Neither the jurisdiction based on the place of performance nor the jurisdiction based on joint litigation therefore gave rise to international jurisdiction for German courts. The case thus demonstrates that the place of construction, the economic connection and a joint action do not in themselves establish a German venue for proceedings.
2. Starting point: International jurisdiction takes precedence over local jurisdiction
In purely domestic cases, the issue is generally one of local jurisdiction. In principle, a person may be sued at their general place of jurisdiction. In addition, the Code of Civil Procedure (ZPO) provides for special and exclusive places of jurisdiction (Sections 12 et seq. ZPO).
This issue is also relevant in cross-border cases. However, international jurisdiction must first be clarified. Do the courts in the buyer’s or the seller’s country have jurisdiction? Only once the international jurisdiction of German courts has been established is the next step to determine, in accordance with the Code of Civil Procedure (ZPO), which German court has territorial jurisdiction. In practice, this sequence of assessment is often overlooked.
Within the EU, international jurisdiction is governed by Regulation (EU) No 1215/2012 (the Brussels Ia Regulation). The starting point is Article 4(1) of this Regulation: according to this, persons, including legal entities, must in principle be sued before the courts of the Member State in which they have their domicile or registered office. For a Polish supplier, Poland is therefore initially the natural venue. Specific places of jurisdiction or a valid choice of court agreement may deviate from this, but they must not be extended merely for reasons of economic expediency.
The most direct route to a predictable venue is a choice of court agreement in accordance with Article 25 of the Brussels Ia Regulation. The content of such an agreement must be unambiguous and comply with the formal requirements under EU law. In the case of individually negotiated project or framework contracts, this is relatively straightforward to implement. In practice, however, this is often hindered by standard order forms, conflicting terms and conditions of purchase and sale, or clauses that cannot be proven to have been incorporated. Consequently, there is frequently no valid agreement on the place of jurisdiction.
The mere fact that the supplier is aware that its goods are to be used or installed in Germany at a later date does not, in particular, constitute an implied agreement on the forum. Strict requirements must be met for an implied agreement on jurisdiction to be valid. Anyone wishing to rely on Article 25 of the Brussels Ia Regulation should therefore enter into the agreement expressly, in the proper form and in a documented manner.
3. Place of jurisdiction at the place of performance: place of delivery rather than place of construction
In the case of contracts for the sale of movable goods, Article 7(1)(b), first indent, of the Brussels Ia Regulation provides for a specific place of jurisdiction at the place of performance. The relevant place is the location in a Member State to which the goods were delivered or should have been delivered under the contract. If delivery was due to a location in Germany, a place of jurisdiction for claims arising from the sale of goods may exist there.
The place of construction, the place of assembly and the place where damage resulting from a defect subsequently occurs are therefore not automatically to be regarded as the place of delivery. The decisive factor is what was agreed regarding the required handover and how this is evident from the contractual and transactional documentation. Therefore, the order, order confirmation, delivery clause, transport order, delivery note, CMR consignment note, invoice and actual handover must be considered together.
In the proceedings before the Regional Court (LG) of Siegen, the supplier argued that the goods had been collected from the factory in Poland in spring 2020 in several partial deliveries by a carrier commissioned by the buyer, as delivery ‘ex works’ (EXW) had been agreed. The court did not consider the claimant’s general assertion that the windows and doors had been delivered to Germany to be sufficient. The documents submitted did not show either a delivery agreement to Germany or an actual delivery there. German courts therefore had no jurisdiction under Article 7(1) of the Brussels I-a Regulation.
This case highlights that where the goods are collected from the supplier’s premises in accordance with the contract, the relevant place of delivery is generally there. EXW or FCA clauses may provide strong evidence of this, but they do not replace an interpretation of the entire contractual agreement and a comparison with the actual performance of the contract. Anyone wishing to establish a place of performance in Germany should agree on a clear obligation on the part of the foreign supplier to deliver to a specifically designated German address and implement this agreement consistently.
4. The fitter as the ‘anchor defendant’
In construction and project cases, it is advisable to sue the foreign supplier together with a German fitter at the fitter’s place of business in Germany. Pursuant to Article 8(1) of the Brussels Ia Regulation, where there are several defendants, a joint action is admissible before the court of the (domicile) of one of the defendants, provided that the claims are so closely connected that a joint hearing and decision appear necessary to avoid conflicting judgments.
At first glance, this connection seems obvious: both the supplier and the fitter are involved, in practical and economic terms, in the same construction project. The windows are assembled, glazed, sealed and fitted on site. A joint taking of evidence at the construction site would therefore seem practical. However, this is not sufficient to establish the legal connection required by Article 8(1) of the Brussels Ia Regulation.
The Regional Court of Siegen therefore considered it decisive that the supply and installation contracts were separate contracts involving separate obligations to perform. The judgment succinctly states: ‘The defendants are liable independently of one another for any defects in their respective services on the basis of their separate and distinct contractual relationships with the claimant.’ Accordingly, the supplier was liable, where applicable, for defects in the windows, and the fitter for faulty glazing, sealing, fixing or the connection to the building structure.
On closer inspection, it is apparent that the services were provided separately: the windows were manufactured in Poland and installed on the German building site. A possible area of overlap, such as the costs of re-installation in the event of a window replacement, was not deemed sufficient by the court. It regarded this merely as a ‘minor overlap’ which did not give rise to ‘factual circumstances that coincide to a significant extent’.
The court also ruled out the necessary element of foreseeability. According to the judgement, ‘neither a deliberate collaboration between the defendants nor a contractual or factual link between them’ had been demonstrated. The fact that a supplier, in the course of an ongoing business relationship, must expect its products to be used in Germany does not mean that it must foresee the involvement of a specific third party for installation and joint legal action at that party’s place of residence. This conclusion is supported by the case law of the Federal Court of Justice (BGH) and the European Court of Justice (ECJ).
In practice, this means that an additional defendant who may be jointly and severally liable may establish a place of jurisdiction under Article 8(1) of the Brussels Ia Regulation. However, strict conditions apply in this regard. Different rulings on separate liability for supply and installation do not automatically constitute contradictory rulings within the meaning of the provision. Anyone considering an ‘anchor defendant’ must, in particular, provide a clear and comprehensible explanation of the factual and legal interconnection between the claims, as well as the foreseeability of a joint claim being brought against them.
5. Implications for Contract Drafting
A jurisdiction clause is the direct route to a predictable venue for proceedings. In addition, the question of the place of delivery should be clarified at the contract drafting stage and not only once proceedings have commenced. It is, in any case, part of the procurement decision, the order and operational logistics. As the present case shows, however, the place of performance also has specific legal significance for the place of jurisdiction. This should likewise be factored into the planning and decision-making process. Anyone wishing to secure a place of performance in Germany must therefore clearly agree on a corresponding obligation on the part of the supplier to perform.
International jurisdiction is merely a preliminary issue that must be clarified before a decision can be made on the merits of the case. Clarifying this at a later stage therefore costs a great deal of time and resources. The following points will help to reconcile practical, logistical and legal requirements.
