The rule of jurisdiction laid down in the second indent of article 5(1)(b) of Council Regulation (EC) No 44/2001 for disputes relating to contracts for the supply of services was applicable in the case of a legal action by which a claimant established in one member state claimed, against a defendant established in another member state, rights arising from an exclusive distribution agreement, which required the contract binding the parties to contain specific terms concerning the distribution by the distributor of goods sold by the grantor. It was for the national court to ascertain whether that was the case in the before it.

The claimant Belgian company, Corman-Collins SA, and the defendant French company, La Maison du Whisky SA, had a commercial relationship for many years during which the claimant purchased various brands of whisky from the defendant of which it took delivery in France for resale in Belgium. During the whole of that period the claimant used the appellation “Maison du Whisky Belguique” and an Internet site called www.whisky.be without that usage causing any reaction from the defendant. However, subsequently the defendant banned the claimant from using the appellation and closed the website. The defendant then informed the claimant that it would confer exclusive distribution of two brands of its products to another company through with the claimant was henceforth invited to place its orders. The claimant sued the defendant before the Belgian court seeking an order for payment of compensation in lieu of notice and additional compensation under Belgian law. The defendant challenged the jurisdiction of the court seised on the ground that the French courts had jurisdiction under article 2 of Regulation No 44/2001 and the claimant responded by invoking the Belgian provisions. The parties in dispute as to how to classify their commercial relationship, with the claimant submitting that it was a distribution agreement while the defendant contended that the relationship consisted of simple contracts for purchase and sale concluded on the basis of weekly orders. The Belgian court accordingly referred to the Court of Justice for a preliminary ruling the following question, inter alia.

Whether article 5(1)(b) of Regulation No 44/2001, which related to contracts for the sale of goods and contracts for the provision of services, was applicable to a distribution agreement or whether, in the case of a contract of that type, the jurisdiction of the court to hear and determine an action based on such a contract had to be determined in accordance with the place of performance of the obligation under article 5(1)(a).

According to decided law, the concept of “services” within the meaning of article 5(1)(b) of Regulation No 44/2001 required: (a) that the party who provided the service carried out a particular activity; (b) in return for remuneration. The first criterion corresponded, in the case of an exclusive distribution agreement, to the characteristic service provided by the distributor which, by distributing the grantor’s products, was involved in increasing their distribution. As a result of the supply guarantee it enjoyed under the exclusive distribution agreement and, as the case may be, its involvement in the grantor’s commercial planning, in particular with respect to marketing operations, factors in respect of which the national court had jurisdiction to make a ruling, the distributor was able to offer clients services and benefits that a mere reseller could not and thereby acquire, for the benefit of the grantor’s products, a larger share of the local market. The second criterion, the remuneration paid as consideration for an activity, did not refer strictly to the payment of a sum of money and account had to be taken of the fact that the distribution agreement was based on a selection of the distributor by the grantor. That selection conferred a competitive advantage on the distributor in that the latter had the sole right to sell the grantor’s products in a particular territory or, at least the very least, that a limited number of distributors enjoyed that right. Moreover, the distribution agreement often provided assistance to the distributor regarding access to advertising, communicating know-how by means of training or yet even payment facilities. All those advantages, whose existence it was for the court adjudicating on the substantive action to ascertain, represented an economic value for the distributor that could be regarded as constituting remuneration. A distribution agreement containing the typical obligations of ensuring the distribution of the grantor’s products and laying down the general rules applicable to the future relations between the grantor and the distributor could be classified as a contract for the supply of services for the purpose of applying the rule of jurisdiction in the second indent of article 5(1)(b) of the Regulation. That classification excluded the application to a distribution agreement of the rule of jurisdiction laid down in article 5(1)(a) of the Regulation.