Judgment of the Court; 27 April 1999; Hans-Hermann Mietz v Intership Yachting Sneek BV; Germany; in Case C-99/96

1. Article 13, first paragraph, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, and by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, must be construed as not applying to a contract between two parties having the following characteristics, that is to say, a contract:

- relating to the manufacture by the first contracting party of goods corresponding to a standard model, to which certain alterations have been made;

- by which the first contracting party has undertaken to transfer the property in those goods to the second contracting party, who has undertaken, by way of consideration, to pay the price in several instalments; and

- in which provision is made for the final instalment to be paid before possession of the goods is transferred definitively to the second contracting party.

It is in this regard irrelevant that the contracting parties have described their contract as a `contract of sale'. A contract having the characteristics mentioned above is however to be classified as a contract for the supply of services or of goods within the meaning of Article 13, first paragraph, point 3, of the Convention of 27 September 1968. It is for the national court, should the need arise, to determine whether the particular case before it involves 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 Articles 289 to 297 of the Netherlands Code of Civil Procedure by a court not having jurisdiction under the Convention of 27 September 1968 as to the substance of the matter is not a provisional measure capable of being granted under Article 24 of that Convention unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure ordered relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made.