The author of this post is Giulio Monga, a PhD student at the Catholic University of the Sacred Heart, Milan.
On 16 April 2019, the Italian Supreme Court (Corte di Cassazione) ruled on the relevance of the Incoterm “FCA – Free Carrier (named place of delivery)” to the operation of Article 5(1) of the Brussels I Regulation , corresponding to Article 7(1) of the Brussels I bis Regulation.
An Italian company (Agusta) sued a French company (Team) before the Court of Frosinone seeking the termination of the sales agreement concluded between the two, on the ground that the goods supplied by the latter were defective. Team argued that the seised court lacked jurisdiction. It observed that the goods had been sold FCA (Free Carrier) the Paris International Airport, thereby contending that Paris ought to be regarded as the place of delivery agreed by the parties for the purposes of Article 5(1)(b), first indent, of the Brussels I Regulation (pursuant to the latter provision, jurisdiction over sales of goods lies with the courts for the place “where, under the contract, the goods were delivered or should have been delivered”).
The Relevance of Incoterms to Jurisdiction over Contractual Matters
Incoterms are standard commercial terms drawn up by the International Chamber of Commerce (ICC). Under the FCA rule, the seller undertakes to deliver the goods, cleared for export, to the carrier or another person nominated by the buyer at the seller’s premises or at another named place. The seller bears all costs and risks of delivery, while the buyer undertakes to take care of the delivery of the goods to their final destination, bearing the costs and risks of the onward carriage.
The Italian Supreme Court recalled that in Electrosteel the Court of Justice of the European Union held that the seised court, in order to verify its jurisdiction under Article 5(1)(b), first indent, of Brussels I Regulation, must first ascertain whether the parties have agreed on a place of delivery in the contract. For this, account must be taken “of all the relevant terms and clauses … which are capable of clearly identifying that place, including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, such as the Incoterms …”. According to the Corte di Cassazione, where an Incoterm is incorporated into a contract, and the issue arises of the relevance of that incorporation to the issue of jurisdiction, the seised court must assess whether the Incoterm in question is merely concerned with the allocation of the risks and costs related to the transaction, or whether the parties also meant it to identify – with sufficient clarity – the place of delivery of the goods.
The Corte di Cassazione concluded that by incorporating the Incoterm FCA into their contract, the parties failed to agree on a clear identification of the place of delivery of the goods for the purposes of Article 5(1)(b) of the Brussels I Regulation. The Incoterm FCA, the Court argued, concerns nothing more than the allocation between the parties of the risks and costs related to the transaction.
Regrettably, the Corte di Cassazione failed to state the reasons for the latter finding. The Court acknowledged that the key issue is whether the chosen Incoterm conveys an agreement of the parties as to the place of delivery of the goods, but did not provide an analysis of the Incoterm FCA, as used in the contract at issue, and did not explain why the naming of the International Airport of Paris could not be regarded as signifying an agreement to that effect (according to the ICC rules that accompany the Incoterms, when goods are sold FCA the seller ‘must deliver the goods to the carrier … nominated by the buyer at the named point, if any, at the named place …’).
Actually, all Incoterms concern the allocation of risks and costs between the parties. By providing for such allocation they perform, in fact, the key part of their job. On top of that, however, they may – as the Court of Justice acknowledged in Electrosteel – convey an agreement as regards the place of delivery. Whether this happens in a particular case depends on the analysis of the circumstances. The way in which the Corte di Cassazione engaged in this analysis is, methodologically, unconvincing. Arguably, one should examine the rules set out by the ICC itself to describe the Incoterm in question, and any other element as may help determine the intended meaning of the agreement (the negotiations between the parties etc.). The fact is that the Corte di Cassazione failed to indicate the circumstances which it considered to be relevant to the issue, and failed to elaborate on their assessment. It merely stated, in rather general terms, that the incorporation of the Incoterm FCA is not evidence, as such, of an agreement as to the place of delivery of the goods.
It’s a missed opportunity, for establishing a clear methodology, ideally one shared by domestic courts across the EU, would serve the needs of predictability and would foster the uniform application of the Brussels I regime.