The Supreme Court, in a case of an Italian company refusing to deliver to an EU company other goods claiming that there is no contractual constraint that obliges it to provide, have considered that also for actions of nullity and negative finding relating to an intra-EU sale contract the court of the place of delivery is competent, in the absence of exception clause of the forum, in accordance with the article 5, No. 1, EC Regulation 44/2001 (now article 7, No. 1, EU Regulation 1215/2012).
General rules on jurisdiction
In the absence of a written choice by the parties, in the event of a conflict between persons domiciled in different Member States, the competent court will be identified on the basis of the rules of private international law in force, and today in particular Regulation EU 1215/2012, which replaced Regulation EC 44/2001 with effect from 10 January 2015.
The general rule is that the case follows the court of the defendant. The above Regulation also provides for exclusive powers which always prevail, as well as special powers “on the basis of the subject matter of the dispute”.
For example, in the case of a sale between the Italian seller and the French buyer, the dispute may be decided by the court of the State in which the goods were delivered or were to be delivered (special rule).
The choice to apply one or the other of these courts is for the initiator of the case. Otherwise, the parties could have agreed to include a clause to this effect in the contract and in accordance with EC Regulation 44/2001 (now EU Regulation 1215/2012) the court to turn to in case of dispute, so so as to avoid discussing it in court.
But what if the parties only had a verbal agreement and one of them claims that the judge declares that it never existed?
According to some, the rules of jurisdiction laid down in contractual matters cannot be applied when a court is asked to establish that a contract has never existed or that it has no effect, because the facts would not be covered by “contractual matters” covered by EU Regulation 1215/2012. This argument has not been followed up much in the decisions of the various international courts, but the Regulation must be applied also in cases where the nullity or non-existence of the contractual agreement is requested.
In the latter case, therefore, the general rule of the defendant’s court or the special rule of the place of delivery of the goods sold applies.