I reviewed Richard de la Tour’s Opinion in C-526/23 VariusSystems digital solutions GmbH v GR Inhaberin B & G here. The CJEU held at the end of November, essentially following it and being very brief in doing so. The operative part of the judgment reads
The second indent of Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
must be interpreted as meaning that the ‘place of performance’ of a contract for the development and ongoing operation of software designed to meet the needs of a customer established in a Member State other than that in which the company that created, designed and programmed that software is established is the place where that customer accesses the software, that is to say, consults and uses it.
The Court [21] refers in particular to the European Commission’s submission that
With regard to a contract for the provision of software, such as that at issue in the main proceedings, it is necessary to find, in line with what has been set out by the European Commission in its written observations, that the design and programming of software do not constitute the obligation which characterises such a contract, since the service which is the subject of such a contract is not actually provided to the customer concerned until that software is operational. It is only from that moment, when the said software can be used and its quality can be inspected, that that service will actually be provided.
With respect, that is a nonsense. Is a banking service in the form of a loan (see CJEU Kareda) not provided until the money reaches my account and therefore becomes ‘operational’? Is my whisky merchant’s advice on single malt (see CJEU Maison du Whisky) not provided until I taste the malt with my own lips, hence ‘using the advice and inspecting it’?
This reference to use and inspection IMO is something the Court will come to regret: it is of very wide application and will undoubtedly upend the curt reference to BIa’s predictability [15]. The AG’s arguments were more focused and more convincing.
Geert.
EU Private International Law, 4th ed. 2024, 2.425.
https://x.com/GAVClaw/status/1862130498761310273
