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JUDGMENT OF THE COURT

27 April 1999 (1)

(Brussels Convention Concept of provisional measures Construction anddelivery of a motor yacht)

In Case C-99/96,

REFERENCE to the Court under the Protocol of 3 June 1971 on theInterpretation by the Court of Justice of the Convention of 27 September 1968 onJurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the Bundesgerichtshof (Germany) for a preliminary ruling in the proceedingspending before that court between

Hans-Hermann Mietz

and

Intership Yachting Sneek BV,

on the interpretation of Article 13, first paragraph, points 1 and 3, Article 24,Article 28, second paragraph, and Article 34, second paragraph, of the aboveConvention of 27 September 1968 (OJ 1978 L 304, p. 36), as amended by theConvention of 9 October 1978 on the Accession of the Kingdom of Denmark,Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978L 304, p. 1 and amended text p. 77) and by the Convention of 25 October 1982on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet,G. Hirsch and P. Jann (Presidents of Chambers), G.F. Mancini, J.C. Moitinho deAlmeida, C. Gulmann, J.L. Murray, D.A.O. Edward (Rapporteur), H. Ragnemalm,L. Sevón and M. Wathelet, Judges,

Advocate General: P. Léger,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

the German Government, by Jörg Pirrung, Ministerialrat in the FederalMinistry of Justice, acting as Agent,

the United Kingdom Government, by Stephanie Ridley, of the TreasurySolicitor's Department, acting as Agent, and David Lloyd Jones, Barrister,

the Commission of the European Communities, by Ulrich Wölker, of itsLegal Service, acting as Agent, assisted by Hans-Jürgen Rabe and Georg M.Berrisch, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of the United Kingdom Government,represented by David Lloyd Jones, and the Commission, represented by MarcoNuñez-Müller, of the Brussels Bar, at the hearing on 9 July 1997,

after hearing the Opinion of the Advocate General at the sitting on 8 October1997,

gives the following

Judgment

1.

By order of 29 February 1996, received at the Court on 26 March 1996, theBundesgerichtshof (Federal Court of Justice) referred to the Court for apreliminary ruling under the Protocol of 3 June 1971 on the Interpretation by theCourt of Justice of the Convention of 27 September 1968 on Jurisdiction and theEnforcement of Judgments in Civil and Commercial Matters four questions on theinterpretation of Article 13, first paragraph, points 1 and 3, Article 24, Article 28,

second paragraph, and Article 34, second paragraph, of the above Convention of27 September 1968 (OJ 1978 L 304, p. 36), as amended by the Convention of9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and theUnited Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and amended text p. 77) and by the Convention of 25 October 1982 on theAccession of the Hellenic Republic (OJ 1982 L 388, p. 1) ('the Convention).

2.

Those questions have arisen in proceedings brought before a German court witha view to securing an order in Germany for the enforcement of a judgmentdelivered on 12 May 1993 ('the Netherlands judgment) by the President of theArrondissementsrechtbank te Leeuwarden (Regional Court, Leeuwarden)(Netherlands) ('the court of origin) following adversarial interim proceedings('kort geding) between Intership Yachting Sneek BV ('Intership Yachting), alimited-liability company established in Sneek (Netherlands), and Mr Mietz, whois domiciled in Lüchow (Germany).

3.

Under the system of the Convention, the general rule in regard to the jurisdictionof courts, set out in the first paragraph of Article 2, is that persons domiciled in aContracting State must, whatever their nationality, be sued in the courts of thatState.

4.

The first paragraph of Article 3 of the Convention provides that persons domiciledin a Contracting State may be sued in the courts of another Contracting State onlyby virtue of the rules set out in Sections 2 to 6 of Title II, that is to say, the rulesset out in Articles 5 to 18 of the Convention.

5.

Articles 13 and 14 form part of Section 4, entitled 'Jurisdiction over consumercontracts, of Title II of the Convention. The first paragraph of Article 13 providesas follows:

'In proceedings concerning a contract concluded by a person for a purpose whichcan be regarded as being outside his trade or profession, hereinafter called theconsumer, jurisdiction shall be determined by this Section, without prejudice to theprovisions of [Articles 4 and 5(5)], if it is:

1. a contract for the sale of goods on instalment credit terms; or

2. a contract for a loan repayable by instalments, or for any other form ofcredit, made to finance the sale of goods; or

3. any other contract for the supply of goods or a contract for the supply ofservices, and

(a) in the State of the consumer's domicile the conclusion of the contractwas preceded by a specific invitation addressed to him or byadvertising; and

(b) the consumer took in that State the steps necessary for the conclusionof the contract.

6.

The second paragraph of Article 14 of the Convention provides as follows:

'Proceedings may be brought against a consumer by the other party to the contractonly in the courts of the Contracting State in which the consumer is domiciled.

7.

In addition, Article 24, which constitutes Section 9 of Title II of the Convention andspecifically governs provisional and protective measures, provides as follows:

'Application may be made to the courts of a Contracting State for such provisional,including protective, measures as may be available under the law of that State, evenif, under this Convention, the courts of another Contracting State have jurisdictionas to the substance of the matter.

8.

The rules governing recognition and enforcement of judgments are found inTitle III of the Convention. Article 28, which appears in Section 1 of Title III,entitled 'Recognition, provides as follows:

'Moreover, a judgment shall not be recognised if it conflicts with the provisions ofSections 3, 4 or 5 of Title II, or in a case provided for in Article 59.

In its examination of the grounds of jurisdiction referred to in the foregoingparagraph, the court or authority applied to shall be bound by the findings of facton which the court of the State of origin based its jurisdiction.

Subject to the provisions of the first paragraph, the jurisdiction of the court of theState of origin may not be reviewed; the test of public policy referred to in point 1of Article 27 may not be applied to the rules relating to jurisdiction.

9.

Article 29, which also appears in Section 1 of Title III of the Convention, providesthat:

'Under no circumstances may a foreign judgment be reviewed as to its substance.

10.

The second and third paragraphs of Article 34, which forms part of Section 2,entitled 'Enforcement, of Title III of the Convention, are worded as follows:

'The application may be refused only for one of the reasons specified in Articles27 and 28.

Under no circumstances may the foreign judgment be reviewed as to its substance.

11.

Mr Mietz and Intership Yachting concluded in writing in Sneek a 'contract of salefor the purchase of an Intership Type 1.150 G vessel, to which a number ofalterations were to be made. As consideration, Mr Mietz was to pay DM 250 000in five instalments.

12.

Mr Mietz having failed to meet in full his obligation to pay the price, IntershipYachting obtained the Netherlands judgment, by which Mr Mietz was ordered, interalia, to pay to Intership Yachting the sum of DM 143 750, plus interest. Thatjudgment was declared to be provisionally enforceable.

13.

On 29 October 1993 the Landgericht (Regional Court) Lüneburg (Germany), onthe application of Intership Yachting, declared the Netherlands judgment to beenforceable and issued an order for its enforcement.

14.

Mr Mietz appealed against that decision authorising enforcement to the competentOberlandesgericht (Higher Regional Court). He argued that Intership Yachtingand himself had agreed on all of the details of the order for the vessel in question,which was intended for his own personal use, at the Boat Show in Düsseldorf(Germany) and that, when they met again in Sneek one week later, they hadmerely signed the contract and he had made the agreed advance payment ofDM 40 000. From this he concluded that, under the second paragraph ofArticle 14 of the Convention, the courts of the Contracting State in which thedebtor was domiciled, that is to say Germany, had exclusive jurisdiction in thematter.

15.

The Oberlandesgericht dismissed that appeal and Mr Mietz appealed on a pointof law ('Revision) against that decision to the Bundesgerichtshof.

16.

The Bundesgerichtshof takes the view that recognition and enforcement of theNetherlands judgment could be refused, pursuant to the first paragraph of Article28 of the Convention, only if Mr Mietz were able to rely on the rules governingjurisdiction over consumer contracts set out in Articles 13 and 14 of theConvention.

17.

The Bundesgerichtshof notes in this regard the different definitions which theMember States have given to the concept of the sale of goods on instalment creditterms (Kauf beweglicher Sachen auf Teilzahlung) and to the concept of the supplyof goods (Lieferung beweglicher Sachen), terms which are set out in points 1 and3 respectively of the first paragraph of Article 13 of the Convention.

18.

The Bundesgerichtshof also notes that the Netherlands judgment contains noinformation as to where the acts preparatory to the conclusion of the contract wereperformed, so that it finds it impossible on that basis to determine whether the

court of origin did or did not infringe Article 13, first paragraph, point 3, of theConvention, which reserves to the courts of the Member State in which theconsumer resides jurisdiction over disputes concerning contracts for the supply ofservices or goods in the case where certain preparatory acts have been performedin that State. During the appeal proceedings, Mr Mietz had argued that thecreditor had advertised with a view to this sale during a specialist show organisedin Germany and that the contract had been concluded orally during that show. TheBundesgerichtshof, however, is unsure whether it can take into account this newargument by Mr Mietz inasmuch as the second paragraph of Article 28 of theConvention prohibits review as to substance.

19.

If the Court should take the view that Mr Mietz could indeed rely on the rulesgoverning jurisdiction over consumer contracts, the Bundesgerichtshof questionswhether the court of origin would not have been entitled to derogate from thoserules by virtue of Article 24 of the Convention. Articles 13 and 14 would not thenconstitute an obstacle to recognition of the Netherlands judgment.

20.

The Bundesgerichtshof accordingly decided to stay proceedings and refer thefollowing questions to the Court for a preliminary ruling:

'1. Is there a sale of goods on instalment credit terms within the meaning ofpoint 1 of the first paragraph of Article 13 of the Brussels Convention in thecase where, in a document described by the parties as a contract of sale,one of the parties undertakes to manufacture a specific type of motor yachtwith nine specified alterations and to transfer it to the other party, and thelatter is required to pay DM 250 000 for it in five instalments?

If the first question is answered in the negative:

2. Is the contract described in the first question a contract for the supply ofgoods within the meaning of point 3 of the first paragraph of Article 13 ofthe Brussels Convention?

3. Under the second paragraph of Article 34 of the Brussels Convention, inconjunction with the second paragraph of Article 28 thereof, must accountalso be taken of new facts which, according to the debtor, establish that thecourt of the State of origin breached the provisions of Section 4 of Title IIof that Convention?

If either the first or the second and third questions are answered in theaffirmative:

4. Does the possibility provided for in Articles 289 to 297 of the NetherlandsWetboek van Burgerlijke Rechtsvordering (Code of Civil Procedure) forobtaining a judgment ordering payment of contractual consideration throughapplication for an immediate interim order by way of an abbreviated

procedure (kort geding) constitute a provisional measure within themeaning of Article 24 of the Brussels Convention?

21.

It is appropriate first of all to reply to the first and second questions, which shouldbe examined together, then to the fourth question, and finally to the third question.

The first and second questions

22.

In order to determine the scope of the first and second questions, it should beborne in mind that the dispute in the main proceedings concerns a contractconcluded between two parties which those parties described as a 'contract of saleinvolving the construction of a yacht conforming to a standard model type butfeaturing a number of alterations. The first contracting party undertook tomanufacture the yacht and to transfer the property in it to the second contractingparty, who, by way of consideration, undertook to pay the price for it in fiveinstalments. It appears from the order for reference that the final instalment wasto be paid at the time of the trial voyage, that is to say, before possession of theyacht passed definitively to the second contracting party.

23.

In view of certain observations concerning the possible treatment of a registeredvessel as immovable property, it follows from the order for reference that, withoutprejudice to the question whether the contract in issue is to be treated as a contractfor the supply of services or for the supply of goods, the yacht in question must, inany event, be classified as goods within the meaning of the Convention.

24.

In that context, the crux of the Bundesgerichtshof's first question is whether theconcept of the sale of goods on instalment credit terms within the meaning ofArticle 13, first paragraph, point 1, of the Convention must be understood asextending to a contract:

relating to the manufacture by the first contracting party of goodscorresponding to a standard model, to which certain alterations have beenmade;

by which the first contracting party has undertaken to transfer the propertyin those goods to the second contracting party, who has undertaken, by wayof consideration, to pay the price in several instalments; and

in which provision is made for the final instalment to be paid beforepossession of the goods is transferred definitively to the second contractingparty.

If the answer is in the negative, the Bundesgerichtshof asks, by its second question,whether such a contract must be treated as a contract for the supply of goodswithin the meaning of Article 13, first paragraph, point 3, of the Convention.

25.

It must be stressed that the Court has not been asked to address the questionwhether a person in the position of Mr Mietz satisfies the other conditions set outin Article 13 of the Convention in order to be treated as a consumer within themeaning of that provision.

26.

According to settled case-law, the concepts used in Articles 13 and 14 of theConvention must be interpreted independently, by reference principally to thesystem and objectives of the Convention (see, in particular, Case 150/77 Bertrandv Ott [1978] ECR 1431, paragraphs 14, 15, 16 and 19, Case C-89/91 ShearsonLehman Hutton v TVB [1993] ECR I-139, paragraph 13, and Case C-269/95Benincasa v Dentalkit [1997] ECR I-3767, paragraph 12).

27.

Furthermore, the rules of jurisdiction which derogate from the general principle onjurisdiction, such as the rules featuring in Articles 13 and 14, cannot give rise to aninterpretation going beyond the cases envisaged by the Convention (see Bertrand,paragraph 17, Shearson Lehman Hutton, paragraphs, 14, 15 and 16, and Benincasa,paragraphs 13 and 14, all cited above).

28.

The Court held, in paragraph 20 of its judgment in Bertrand, that the sale of goodson instalment credit terms is to be understood as a transaction in which the priceis discharged by way of several payments or which is linked to a financing contract.

29.

A contract such as that described in paragraph 22 of the present judgment isindeed a transaction in which the agreed price is discharged by way of severalpayments, so that such a contract could be described as a contract of sale, sincetransfer of possession and property takes place only after the agreed price has beenpaid in full.

30.

Such a contract cannot, however, be described as a 'sale ... on instalment creditterms within the meaning of Article 13, first paragraph, point 1, of theConvention.

31.

It follows from the wording of the Convention, and in particular from theexpression 'instalment credit terms in the English version, that Article 13, firstparagraph, point 1, of the Convention is intended to protect the purchaser onlywhere the vendor has granted him credit, that is to say, where the vendor hastransferred to the purchaser possession of the goods in question before thepurchaser has paid the full price. In such a case, on the one hand, the purchasermay, when the contract is concluded, be misled as to the real amount which heowes, and, on the other, he will bear the risk of loss of those goods while remainingobliged to pay any outstanding instalments. Such considerations do not, however,apply where the price must be paid in full before transfer of possession takes place.

Where the full price must be paid before transfer of possession, the specialprotection referred to in the first paragraph of Article 13 of the Convention cannotbe extended to the purchaser solely on the ground that he has been allowed to paythe price in several instalments.

32.

As regards the second question, it must be stressed that the Bundesgerichtshof isasking the Court only whether a contract such as that in the main proceedings isto be treated as a contract for the supply of goods within the meaning of Article 13,first paragraph, point 3, of the Convention. There can be no doubt that such acontract should be classified as a contract for the supply either of services or ofgoods. It is unnecessary, for the purposes of the present judgment, to decidewhether, in this particular case, there was a supply of services or of goods.

33.

The answer to the first and second questions must therefore be that Article 13, firstparagraph, point 1, of the Convention must be construed as not applying to acontract between two parties having the following characteristics, that is to say, acontract:

relating to the manufacture by the first contracting party of goodscorresponding to a standard model, to which certain alterations have beenmade;

in which provision is made for the final instalment to be paid beforepossession of the goods is transferred definitively to the second contractingparty.

It is in this regard irrelevant that the contracting parties have described theircontract as a 'contract of sale. A contract having the characteristics mentionedabove is however to be classified as a contract for the supply of services or of goodswithin the meaning of Article 13, first paragraph, point 3, of the Convention. It isfor the national court, should the need arise, to determine whether the particularcase before it involves a supply of services or a supply of goods.

The fourth question

34.

It should be noted at the outset that Articles 289 to 297 of the Netherlands Codeof Civil Procedure ('the Netherlands Code) deal with a form of procedure knownas 'kort geding, which allows the President of the Arrondissementsrechtbank togrant enforceable measures 'in all cases which, having regard to the interests of theparties, require an immediate measure on grounds of urgency (Article 289(1)).

35.

Under Article 292 of the Netherlands Code, 'interim decisions are withoutprejudice to the main proceedings. Kort geding may be instituted without the needto bring substantive proceedings before the court having jurisdiction. The Presidentof the Arrondissementsrechtbank may, however, refer the parties back to theordinary proceedings (Article 291).

36.

In order to exercise his jurisdiction in respect of kort geding, the President of theArrondissementsrechtbank is required to comply with the jurisdiction rules providedfor under Netherlands law.

37.

Under Article 289 of the Netherlands Code, kort geding may be instituted at veryshort notice and, in accordance with Article 295, an appeal must be lodged withintwo weeks, on pain of being declared inadmissible.

38.

Under those circumstances, it must be held that kort geding is a procedure of thetype envisaged in Article 24 of the Convention, under which a court is authorised,by the law of its State, to order provisional or protective measures even if, underthe Convention, it does not have jurisdiction as to the substance of the matter.

39.

The Bundesgerichtshof's fourth question must therefore be construed as seeking toascertain whether a judgment ordering payment of contractual consideration,delivered at the end of a procedure such as kort geding, is a provisional measurewhich may be granted by virtue of the jurisdiction provided for under Article 24 ofthe Convention.

40.

It is important to stress that it is not necessary for the court hearing an applicationfor provisional or protective measures to have recourse to Article 24 of theConvention where it has, in any event, jurisdiction as to the substance of a case inaccordance with Articles 2 and 5 to 18 of the Convention (see, to that effect, CaseC-391/95 Van Uden v Deco-Line [1998] ECR I-7091, paragraph 19).

41.

In this connection, the Court held at paragraph 22 of its judgment in Van Uden thatthe court having jurisdiction as to the substance of a case under one of the headsof jurisdiction laid down in the Convention also has jurisdiction to order provisionalor protective measures, without that jurisdiction being subject to any furtherconditions.

42.

In contrast, in the case of a judgment delivered solely by virtue of the jurisdictionprovided for under Article 24 of the Convention and ordering interim payment ofa contractual consideration, the Court ruled in Van Uden that such a judgment doesnot constitute a provisional measure within the meaning of Article 24 unless, first,repayment to the defendant of the sum awarded is guaranteed if the plaintiff isunsuccessful as regards the substance of his claim and, second, the measure orderedrelates only to specific assets of the defendant located or to be located within theconfines of the territorial jurisdiction of the court to which application is made.

43.

The answer to the fourth question must therefore be that a judgment orderinginterim payment of contractual consideration, delivered at the conclusion ofproceedings such as those provided for under Articles 289 to 297 of theNetherlands Code by a court not having jurisdiction under the Convention as to thesubstance of the matter is not a provisional measure capable of being grantedunder Article 24 of the Convention unless, first, repayment to the defendant of thesum awarded is guaranteed if the plaintiff is unsuccessful as regards the substanceof his claim and, second, the measure ordered relates only to specific assets of thedefendant located or to be located within the confines of the territorial jurisdictionof the court to which application is made.

The third question

44.

By this question, the Bundesgerichtshof is asking in substance whether the court towhich application for enforcement is made may, in the context of the procedure forordering enforcement set out in Title III of the Convention, take account of newfacts relied on by one party for the purpose of establishing that a contract such asthat described in paragraph 22 of the present judgment satisfies the conditionslisted in Article 13, first paragraph, point 3, heads (a) and (b), of the Convention.

45.

It should, however, be noted that, even if Mr Mietz were allowed to prove that heought to have been treated as a consumer within the meaning of Article 13 of theConvention, the court of origin could still have had jurisdiction to order provisionalmeasures.

46.

Article 24 of the Convention expressly provides that a court has jurisdiction underits national law to grant an application for such measures, even if does not havejurisdiction as to the substance of the matter. That jurisdiction must be exercisedwithin the limits set out in Article 24 of the Convention with regard, in particular,to the granting of measures ordering interim payment, limits which do not applywhere the court has jurisdiction as to the substance of the matter (see, to thateffect, Van Uden, paragraph 19).

47.

However, it is important to ensure that enforcement, in the State where it is sought,of provisional or protective measures allegedly founded on the jurisdiction laiddown in Article 24 of the Convention, but which go beyond the limits of thatjurisdiction, does not result in circumvention of the rules on jurisdiction as to thesubstance set out in Articles 2 and 5 to 18 of the Convention (see, to that effect,Van Uden, paragraph 46).

48.

Next, it should be noted that although, in the main proceedings, the court of originordered only one measure namely interim payment it may happen, in othersituations, that the court of origin orders several measures, some of which are to

be classified as provisional or protective measures within the meaning of Article 24of the Convention, while others go beyond the limits provided for in that provision.

49.

The question which arises for the court to which application for enforcement ismade therefore relates not to the jurisdiction, as such, of the court of origin, butrather to the extent to which it is possible to seek enforcement of a judgmentdelivered in the exercise of the jurisdiction recognised by Article 24. Thatjurisdiction constitutes, within the context of the Convention, a special regime (see,in that regard, Case 125/79 Denilauler v Couchet Frères [1980] ECR 1553,paragraph 15, and Van Uden, paragraph 42).

50.

Finally, it must be stressed that this is not a case where the court of origin hasexpressly based its jurisdiction to order interim payment by reference to itsjurisdiction under the Convention to deal with the substance of the matter, nor acase where such jurisdiction is evident from the actual terms of its judgment, aswould in particular be the case if the judgment showed that the defendant wasdomiciled in the Contracting State of the court of origin and none of the types ofexclusive jurisdiction set out in Article 16 of the Convention was applicable.

51.

In such circumstances, only the provisions of Article 27 and, if appropriate, the firstparagraph of Article 28 of the Convention would be capable of preventingrecognition and enforcement of the judgment of the court of origin.

52.

Contrary, however, to the submissions of the United Kingdom Government and theCommission, the fact that the defendant appears before the court dealing withinterim measures in the context of fast procedures intended to grant provisional orprotective measures in case of urgency and which do not prejudice the examinationof the substance cannot, by itself, suffice to confer on that court, by virtue ofArticle 18 of the Convention, unlimited jurisdiction to order any provisional orprotective measure which the court might consider appropriate if it had jurisdictionunder the Convention as to the substance of the matter.

53.

Unlike the circumstances outlined above, the Netherlands judgment, for theenforcement of which an order is sought in the main proceedings, has the followingcharacteristics:

it was delivered at the end of proceedings which were not, by their verynature, proceedings as to substance, but summary proceedings for thegranting of interim measures;

the defendant was not domiciled in the Contracting State of the court oforigin and it does not appear from the Netherlands judgment that, for otherreasons, that court had jurisdiction under the Convention as to thesubstance of the matter;

it does not contain any statement of reasons designed to establish thejurisdiction of the court of origin as to the substance of the matter

and

it is limited to ordering the payment of a contractual consideration, without,on the one hand, repayment to the defendant of the sum awarded beingguaranteed if the plaintiff is unsuccessful as regards the substance of hisclaim or, on the other, the measure sought relating only to specific assets ofthe defendant located or to be located within the confines of the territorialjurisdiction of the court to which application is made.

54.

It follows from the reply to the fourth question that, if the court of origin hadexpressly indicated in its judgment that it had based its jurisdiction on its nationallaw in conjunction with Article 24 of the Convention, the court to which applicationfor enforcement was made would have had to conclude that the measure ordered namely unconditional interim payment was not a provisional or protectivemeasure within the meaning of that article and was therefore not capable of beingthe subject of an enforcement order under Title III of the Convention.

55.

So, where the court of origin is silent as to the basis of its jurisdiction, the need toensure that the Convention rules are not circumvented (see, in this respect,paragraph 47 of this judgment) requires that its judgment be construed as meaningthat that court founded its jurisdiction to order provisional measures on its nationallaw governing interim measures and not on any jurisdiction as to substance derivedfrom the Convention.

56.

It follows that, in a case having the characteristics set out in paragraph 53 of thepresent judgment, the court to which application for enforcement was made shouldconclude that the measure ordered is not a provisional measure within the meaningof Article 24 and for that reason cannot be the subject of an enforcement orderunder Title III of the Convention.

57.

It is consequently unnecessary for that court to examine whether, and under whatcircumstances, it might take account of new facts for the purpose of possibleapplication of the second paragraph of Article 28 of the Convention.

58.

It follows that the Court need not reply to the third question.

Costs

59.

The costs incurred by the German and United Kingdom Governments and by theCommission, which have submitted observations to the Court, are not recoverable.

Since these proceedings are, for the parties to the main proceedings, a step in theaction pending before the national court, the decision on costs is a matter for thatcourt.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundesgerichtshof by order of29 February 1996, hereby rules:

1. Article 13, first paragraph, point 1, of the Convention of 27 September 1968on Jurisdiction and the Enforcement of Judgments in Civil andCommercial Matters, as amended by the Convention of 9 October 1978 onthe Accession of the Kingdom of Denmark, Ireland and the UnitedKingdom of Great Britain and Northern Ireland, and by the Convention of25 October 1982 on the Accession of the Hellenic Republic, must beconstrued as not applying to a contract between two parties having thefollowing characteristics, that is to say, a contract:

 relating to the manufacture by the first contracting party of goodscorresponding to a standard model, to which certain alterations havebeen made;

by which the first contracting party has undertaken to transfer theproperty in those goods to the second contracting party, who hasundertaken, by way of consideration, to pay the price in severalinstalments; and

 in which provision is made for the final instalment to be paid beforepossession of the goods is transferred definitively to the secondcontracting party.

It is in this regard irrelevant that the contracting parties have describedtheir contract as a 'contract of sale. A contract having the characteristicsmentioned above is however to be classified as a contract for the supply ofservices or of goods within the meaning of Article 13, first paragraph, point3, of the Convention of 27 September 1968. It is for the national court,should the need arise, to determine whether the particular case before itinvolves a supply of services or a supply of goods.

2. A judgment ordering interim payment of contractual consideration,delivered at the end of a procedure such as that provided for under Articles289 to 297 of the Netherlands Code of Civil Procedure by a court nothaving jurisdiction under the Convention of 27 September 1968 as to the

substance of the matter is not a provisional measure capable of beinggranted under Article 24 of that Convention unless, first, repayment to thedefendant of the sum awarded is guaranteed if the plaintiff is unsuccessfulas regards the substance of his claim and, second, the measure orderedrelates only to specific assets of the defendant located or to be locatedwithin the confines of the territorial jurisdiction of the court to whichapplication is made.

Rodríguez Iglesias Kapteyn Puissochet

Hirsch

Jann

Mancini

Moitinho de Almeida

Gulmann

Murray

Edward

Ragnemalm

Sevón

Wathelet

Delivered in open court in Luxembourg on 27 April 1999.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: German.