Background
The Bundesgerichtshof referred five questions under Article 267 TFEU concerning Article 5(1) of Regulation (EC) No 864/2007 (Rome II). The underlying dispute is between Eurovo, an Italian undertaking, and Zimmerer Erben, formerly Salmet-International GmbH, a German undertaking. Eurovo seeks damages under Italian law for alleged defects in six Salmet battery cages designed and manufactured by Zimmerer Erben. The parties have no contractual relationship.
Between 2009 and 2010, Zimmerer Erben sold five cages to the Dutch undertaking VerstOvo BV and one to the French company Ovonor SAS, which resold it to VerstOvo. VerstOvo resold four cages to Italian undertakings that leased complete aviary systems to Eurovo; the other two were sold to another Italian undertaking that later merged with Eurovo. The cages were delivered from Germany to Eurovo’s production site in Codigoro, Italy, where the aviary systems were installed between July and December 2010. VerstOvo employees assembled them with assistance from some Zimmerer Erben employees.
After technical problems arose, VerstOvo began independent evidence-taking proceedings in Ferrara in May 2011, and the systems were repaired between September 2013 and January 2014. Eurovo’s 2014 damages action in Ferrara failed for lack of international jurisdiction. It then sued in Darmstadt, alleging design and structural defects and malfunctions. The Landgericht dismissed the action in 2020, and the Oberlandesgericht Frankfurt am Main dismissed Eurovo’s appeal in 2021. The appellate court interpreted marketing as placing on the market, treated the products as made available for collection in Ittlingen, Germany, and found no marketing in a country listed in Article 5(1)(a) to (c). It therefore used the producer’s German habitual residence under the second subparagraph of Article 5(1) and denied damages under German law.
The Court’s Holding
Answering the first and second questions together, the Court held that the place where a product is marketed is not only where it leaves the manufacturer’s factory. It also includes where the injured person acquires the product from a distributor or where a carrier delivers it to that person. Article 5(1) requires an autonomous, uniform interpretation. Its wording focuses objectively on the product, not exclusively on the manufacturer, and acquisition through a distribution chain is therefore relevant. Limiting marketing to the manufacturer’s own conduct would undermine the foreseeability rule, while a “leaving the factory” approach would give that event an unjustified privileged role in the cascade of connecting factors.
On the third question, the Court held that a “marketed product” includes a product that is a component of a technical system. Drawing on Rome II’s legislative proposal and Directive 85/374’s definition of products as movables, including incorporated movables, the Court concluded that marketing does not end when a processor takes over a product or when it is incorporated into an intermediate or end product. A broad interpretation preserves the effectiveness and foreseeability of Article 5’s cascade; excluding composite products would create an artificial distinction based on production arrangements.
The fourth and fifth questions were inadmissible on the circumstances presented. The fourth assumed that the cascade could not identify the applicable law because the products had not been marketed, but neither the documents nor the first three answers established that premise. Answering would therefore amount to an advisory opinion on a hypothetical question. The fifth concerned products of the “same type” for the foreseeability rule, but the documents and answers did not show that the marketing location was not reasonably foreseeable to Zimmerer Erben. Costs in the main proceedings are for the referring court; other observation costs are not recoverable.
Key Takeaways
- Marketing under Article 5(1) is not confined to a product leaving the manufacturer’s factory; acquisition from a distributor and delivery by a carrier to the injured person can also establish the relevant place.
- A marketed product includes a component of a technical system, and incorporation into an intermediate or end product does not end its marketing.
- The fourth question was inadmissible because its premise that the products had not been marketed was not established; the fifth was inadmissible because unforeseeability of the marketing location was not established.
Why It Matters
The judgment prevents manufacturers’ factory locations from automatically controlling product-liability conflicts and confirms that distribution chains and incorporated components remain within Article 5(1)’s analysis. It also ties the foreseeability safeguard to the broader marketing inquiry rather than treating manufacturer-only marketing as the norm.
For this dispute, the Court stated that, subject to the factual verifications for the Bundesgerichtshof to carry out, marketing took place in Italy and Italian law is applicable under Article 5(1): Eurovo had its habitual residence there when the damage occurred, acquired the product there, and suffered damage there. That application remains conditional on the referring court’s factual verification.