Case law Brussels I Regulation (44/2001)


Article 5 of the Brussels I Regulation

(Art. 5 BR I = Art. 5 BC 1968)

 



Matters relating to a contract [Article 5, point (1)]


ECJ 20 January 2005 ‘Petra Engler v Janus Versand GmbH’ (Case C-27/02, ECR 2005 p. I-00481)

Legal proceedings by which a consumer seeks an order, under the law of the Contracting State [Member State] in which he is domiciled, that a mail order company established in another Contracting State award a prize ostensibly won by him is contractual in nature for the purpose of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], provided that, first, that company, with the intention of inducing the consumer to enter a contract, addresses to him in person a letter of such a kind as to give the impression that a prize will be awarded to him if he returns the ‘payment notice’ attached to the letter and, second, he accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced. On the other hand, even though the letter also contains a catalogue advertising goods for that company and a request for a ‘trial without obligation’, the fact that the award of the prize does not depend on an order for goods and that the consumer has not, in fact, placed such an order has no bearing on that interpretation (see para. 61, operative part)


ECJ 5 February 2004 ‘Frahuil SA v Assitalia SpA’ (Case C-265/02, ECR 2004 p. I-01543)

Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] must be interpreted as follows: matters relating to a contract do not cover the obligation which a guarantor who paid customs duties under a guarantee obtained by the forwarding agent seeks to enforce in legal proceedings by way of subrogation to the rights of the customs authorities and by way of recourse against the owner of the goods, if the latter, who was not a party to the contract of guarantee, did not authorise the conclusion of that contract (see para. 26, operative part).


ECJ 17 September 2002 ‘Tacconi v HWS’ (Case C-334/00, ECR 2002 p. I-07357)

In circumstances characterised by the absence of obligations freely assumed by one party towards another on the occasion of negotiations with a view to the formation of a contract and by a possible breach of rules of law, in particular the rule which requires the parties to act in good faith in such negotiations, an action founded on the pre-contractual liability of the defendant is a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of the Convention [Article 5, pont (3), of the Brussels I Regulation] (see para. 27, operative part).


ECJ 11 July 2002 ‘Rudolf Gabriel’ (Case C-96/00, ECR 2002 p. I-06367)

The jurisdiction rules set out in the 1968 Brussels Convention [Brussels I Regulation] are to be construed as meaning that judicial proceedings by which a consumer seeks an order in the Contracting State [Member State] in which he is domiciled and pursuant to that State's legislation, requiring a mail-order company established in another Contracting State [Member State] to pay him a financial benefit in circumstances where that company had sent to that consumer in person a letter likely to create the impression that a prize would be awarded to him on condition that he ordered goods to a specified amount, and where that consumer actually placed such an order in the State of his domicile without, however, obtaining payment of that financial benefit, are contractual in nature in the sense contemplated in Article 13, first paragraph, point (3), of that Convention [Article 15(1), point (3), of that Regulation]( see para. 60, operative part).


ECJ 17 November 1998 ‘Van Uden ’ (Case C-391/95, ECR 1998 p. I-07091)

On a proper construction of Article 5, point (1), of the Convention [Article 5, point (1), of the Brussels I Regulation], the court which has jurisdiction by virtue of that provision also has jurisdiction to order provisional or protective measures, without that jurisdiction being subject to any further conditions. However, where the parties have validly excluded the jurisdiction of the courts in a dispute arising under a contract and have referred that dispute to arbitration, it is only under Article 24 of the Convention [Article 31 Regulation] that a court may be empowered to order such measures, since it cannot do so as the court having jurisdiction on the substance of the dispute. In that connection, where the subject-matter of an application for provisional measures relates to a question falling within the scope ratione materiae of the Convention [Regulation], that Convention is applicable and Article 24 [Article 31 BR I] thereof may confer jurisdiction on the court hearing that application even where proceedings have already been, or may be, commenced on the substance of the case and even where those proceedings are to be conducted before arbitrators.


ECJ 17 June 1992 ‘Jakob Handte v Traitements Mécano’ (Case C-26/91, ECR 1992 p. I-03967)

The phrase 'matters relating to a contract' in Article 5, point 1, of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], which must be interpreted independently, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another. Strengthening legal protection of persons established in the Community, which is one of the objectives of the Convention [Regulation], also requires that the jurisdictional rules which derogate from the general principle set out in Article 2 of the Convention [Article 2 of the Regulation] should be interpreted in such a way as to enable a normally well-informed defendant reasonably to predict before which courts, other than those of the State in which he is domiciled, he may be sued. It follows that Article 5, point 1, of the Convention [Article 5, point (1), of the Regulation] is to be understood as meaning that it does not apply to an action between a sub-buyer of goods and the manufacturer, who is not the seller, relating to defects in those goods or to their unsuitability for their intended purpose.


ECJ 8 March 1988 'Arcado v Haviland' (Case 9/87, ECR 1988 p. 01539)

The concept of 'matters relating to a contract' in article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] of is to be regarded as an independent concept which, for the purpose of the application of the Convention, must be interpreted by reference principally to the system and objectives of the convention in order to ensure that it is fully effective. Proceedings relating to the wrongful repudiation of an independent commercial agency agreement and the payment of commission due under such an agreement are proceedings in matters relating to a contract within the meaning of article 5, point (1), of the Convention [Article 5, point (1), of the Regulation].


ECJ 22 March 1983 'Peters v Zuid Nederlandse Aannemers' (Case 34/82, ECR 1983 p. 00987)

1. The concept of 'matters relating to a contract' in article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] should not be interpreted simply as referring to the national law of one or other of the Member States concerned, but should be regarded as an independent concept which, for the purposes of the application of the Convention [Regulation], must be interpreted by reference chiefly to the system and objectives of the Convention [Regulation], in order to ensure that it is fully effective.

2. Obligations in regard to the payment of a sum of money which have their basis in the relationship existing between an association and its members by virtue of membership are 'matters relating to a contract' within the meaning of Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation], whether the obligations in question arise simply from the act of becoming a member or from that act in conjunction with one or more decisions made by organs of the association.


ECJ 4 March 1982 'Effer v Kantner' (Case 38/81, ECR 1982 p. 008250)

In the cases provided for in Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], the national court's jurisdiction to determine questions relating to a contract includes the power to consider the existence of the constituent parts of the contract itself, since that is indispensable in order to enable the national court in which proceedings are brought to examine whether it has jurisdiction under the Convention. Therefore the plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation], even when the existence of the contract on which the claim is based is in dispute between the parties.


ECJ 17 January 1980 'Zelger v Salinitri' (Case 56/79, ECR 1980 P. 00089)

1. The provisions of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], to the effect that in matters relating to a contract a defendant domiciled in a Contracting State [Member State] may be sued in the courts for the place of performance of the obligation in question, introduce a criterion for jurisdiction, the selection of which is at the option of the plaintiff and which is justified by the existence of a direct link between the dispute and the court called upon to take cognizance of it. By contrast, Article 17 of the Convention [Article 23 of the Regulation], which provides for the exclusive jurisdiction of the court designated by the parties in accordance with the prescribed form, puts aside both the rule of general jurisdiction - provided for in Article 2 [Article 2 Regulation] - and the rules of special jurisdiction - provided for in Article 5 [Article 5 Regulation] - and dispenses with any objective connexion between the legal relationship in dispute and the court designated. It thus appears that the jurisdiction of the court for the place of performance and that of the selected court are two distinct concepts and only agreements selecting a court are subject to the requirements of form prescribed by Article 17 of the Convention [Article 23 of the Regulation].

2. If the place of performance of a contractual obligation has been specified by the parties in a clause which is valid according to the national law applicable to the contract, the court for that place has jurisdiction to take cognizance of disputes relating to that obligation under Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation], irrespective of whether the formal conditions provided for under Article 17 [Article 23 Regulation] have been observed.

 

 


Matters not relating to a contract [Article 5, point (1)]


ECJ 5 February 2004 ‘Frahuil SA v Assitalia SpA’ (Case C-265/02, ECR 2004 p. I-01543)

Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] must be interpreted as follows: matters relating to a contract do not cover the obligation which a guarantor who paid customs duties under a guarantee obtained by the forwarding agent seeks to enforce in legal proceedings by way of subrogation to the rights of the customs authorities and by way of recourse against the owner of the goods, if the latter, who was not a party to the contract of guarantee, did not authorise the conclusion of that contract (see para. 26, operative part).


ECJ 27 October 1998 ‘Réunion v Spliethoff's’ (Case C-51/97, ECR 1998 p. I-06511)

An action by which the consignee of goods found to be damaged on completion of a transport operation by sea and then by land, or by which his insurer who has been subrogated to his rights after compensating him, seeks redress for the damage suffered, relying on the bill of lading covering the maritime transport, not against the person who issued that document on his headed paper but against the person whom the plaintiff considers to be the actual maritime carrier, does not fall within the scope of matters relating to a contract within the meaning of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], since the bill of lading in question does not disclose any contractual relationship freely entered into between the consignee and the defendant.

Such an action is, however, a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of that Convention [Article 5, point (3), of that Regulation], since that concept covers all actions which seek to establish the liability of a defendant and are not related to matters of contract within the meaning of Article 5, point (1) [Article 5, point (1), Regulation]. As regards determining the `place where the harmful event occurred' within the meaning of Article 5, point (3) [Article 5, point (3), Regulation], the place where the consignee, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine that place. Whilst it is true that the abovementioned concept may cover both the place where the damage occurred and the place of the event giving rise to it, the place where the damage arose can, in the circumstances described, only be the place where the maritime carrier was to deliver the goods.


ECJ 17 June 1992 ‘Jakob Handte v Traitements Mécano’ (Case C-26/91, ECR 1992 p. I-03967)

The phrase 'matters relating to a contract' in Article 5, point 1, of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], which must be interpreted independently, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another. Strengthening legal protection of persons established in the Community, which is one of the objectives of the Convention [Regulation], also requires that the jurisdictional rules which derogate from the general principle set out in Article 2 of the Convention [Article 2 of the Regulation] should be interpreted in such a way as to enable a normally well-informed defendant reasonably to predict before which courts, other than those of the State in which he is domiciled, he may be sued. It follows that Article 5, point 1, of the Convention [Article 5, point (1), of the Regulation] is to be understood as meaning that it does not apply to an action between a sub-buyer of goods and the manufacturer, who is not the seller, relating to defects in those goods or to their unsuitability for their intended purpose.


ECJ 27 September 1988 'Athanasios Kalfelis v Bankhaus Schröder' (Case 189/87, ECR 1988 p. 05565)

The expression "matters relating to tort, delict or quasi-delict" contained in Article 5, point (3), of the Convention [Article 5, point (3), of the Brussels I Regulation] must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5, point (1) [Article 5, point (1), Regulation].

 


Place of performance [Article 5, point (1)]


ECJ 11 March 2010 ‘Wood Floor Solutions Andreas Domberger GmbH v. Silva Trade SA’ (Case C-19/09)

1. The second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that that provision is applicable in the case where services are provided in several Member States.

2. The second indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that where services are provided in several Member States, the court which has jurisdiction to hear and determine all the claims arising from the contract is the court in whose jurisdiction the place of the main provision of services is situated. For a commercial agency contract, that place is the place of the main provision of services by the agent, as it appears from the provisions of the contract or, in the absence of such provisions, the actual performance of that contract or, where it cannot be established on that basis, the place where the agent is domiciled.


ECJ 25 February 2010 ‘Car Trim GmbH v KeySafety Systems’ (Case C-381/08)

1. Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that where the purpose of contracts is the supply of goods to be manufactured or produced and, even though the purchaser has specified certain requirements with regard to the provision, fabrication and delivery of the components to be produced, the purchaser has not supplied the materials and the supplier is responsible for the quality of the goods and their compliance with the contract, those contracts must be classified as a ‘sale of goods’ within the meaning of the first indent of Article 5(1)(b) of that regulation.
In that regard, in view of the fact that, for the purposes of identifying the court with jurisdiction in relation to contracts for the sale of goods or for the provision of services, Regulation No 44/2001 identifies as a connecting factor the obligation which characterises the contract in question, such contracts will be classified, respectively, as a ‘sale of goods’ within the meaning of the first indent of Article 5(1)(b) of the regulation where the characteristic obligation is the supply of a good, and as a ‘provision of services’ within the meaning of the second indent of Article 5(1)(b) of that regulation where the characteristic obligation is the provision of services.
In determining the characteristic obligation of a contract for the supply of goods to be manufactured or produced where the purchaser has specified certain requirements with regard to the provision, fabrication and delivery of the components to be produced, the fact that the goods to be delivered are to be manufactured or produced beforehand does not alter the classification of the contract at issue as a sales contract. In addition, other factors such as, on the one hand, the fact that the purchaser has not supplied materials and, on the other, the supplier’s responsibility for the quality and compliance of the goods, are indications that such a contract should be classified as a ‘contract for the sale of goods’. (see paras 31-33, 38, 40, 42-43, operative part 1)

2. The first indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the case of a sale involving carriage of goods, the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract.
Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction. That criterion is the most consistent with the origins, objectives and scheme of Regulation No 44/2001 as the ‘place of delivery’ for the purposes of the first indent of Article 5(1)(b) of that regulation. It is, in that respect, highly predictable and meets the objective of proximity, in so far as it ensures the existence of a close link between the contract and the court called upon to hear and determine the case. Furthermore, the principal aim of a contract for the sale of goods is the transfer of those goods from the seller to the purchaser, an operation which is not fully completed until the arrival of those goods at their final destination. (see paras 46, 55-57, 60-62, operative part 2)


ECJ 9 July 2009 ‘Rehder v Air Baltic’ (Case C-204/08)

1. The rule of special jurisdiction in matters relating to a contract, set out in Article 5, point (1), of the Brussels I Regulation reflects an objective of proximity and the reason for that rule is the existence of a close link between the contract and the court called upon to hear and determine the case. Where there are several places at which services are provided in different Member States, in the light of the objectives of proximity and predictability, it is necessary to identify the place with the closest linking factor between the contract in question and the court having jurisdiction, in particular the place where, pursuant to that contract, the main provision of services is to be carried out (see paras 32, 37-38).

2. The second indent of Article 5, point 1)(b), of the Brussels I Regulation must be interpreted as meaning that, in the case of air transport of passengers from one Member State to another Member State, carried out on the basis of a contract with only one airline, which is the operating carrier, the court having jurisdiction to deal with a claim for compensation founded on that transport contract and on Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation No 295/91, is that, at the applicant’s choice, which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that contract.

In this regard, the services the provision of which corresponds to the performance of obligations arising from a contract to transport passengers by air are the checking-in and boarding of passengers, the on-board reception of those passengers at the place of take-off agreed in the transport contract, the departure of the aircraft at the scheduled time, the transport of the passengers and their luggage from the place of departure to the place of arrival, the care of passengers during the flight, and, finally, the disembarkation of the passengers in conditions of safety at the place of landing and at the time scheduled in that contract. The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, understood as agreed in the contract of transport. Air transport consists, by its very nature, of services provided in an indivisible and identical manner from the place of departure to that of arrival of the aircraft, with the result that a separate part of the service which is the principal service, which is to be provided in a specific place, cannot be distinguished on the basis of an economic criterion. Each of those two places has a sufficiently close link of proximity to the material elements of the dispute to ensure the close connection between the contract and the court having jurisdiction, in accordance with the objectives of proximity and predictability, which are pursued by the centralisation of jurisdiction in the place of the provision of services and by the determination of sole jurisdiction for all claims arising out of a contract (see paras 37, 40-44, 47, operative part).


ECJ 23 April 2009 ‘Falco v Weller-Lindhorst’ (Case C-533/07)

1. The second indent of Article 5, point (1)(b), of the Brussels I Regulation must be interpreted as meaning that a contract under which the owner of an intellectual property right grants its contractual partner the right to use that right in return for remuneration is not a contract for the provision of services within the meaning of that provision.

The concept of services implies, at the least, that the party who provides the services carries out a particular activity in return for remuneration. It cannot be inferred from a contract under which the owner of an intellectual property right grants its contractual partner the right to use that right in return for remuneration that such an activity is involved, because, in granting a right to use that property, the owner of an intellectual property right undertakes merely to permit the licensee to exploit it freely.

That analysis cannot be called into question by arguments concerning the interpretation of the concept of ‘services’ within the meaning of Article 50 EC or the definition of that concept provided by the directives on value added tax or by the alleged requirement that the scope of application of Article 5(1)(b) be broadly delimited in relation to Article 5, point (1)(a). First, no element in the broad logic and scheme of Article 5, point (1), of the Brussels I Regulation requires that the concept of ‘provision of services’ set out in the second indent of Article 5(1)(b) of that Regulation be interpreted in the light of the Court’s approach to the freedom to provide services within the meaning of Article 50 EC. Second, contrary to the definition of that concept provided by the directives on value added tax, which is negative and, by its very nature, necessarily broad, under Article 5, point (1), of the Brussels I Regulation, when a contract for the sale of goods is not involved, jurisdiction is not determined only on the basis of the rules which apply to contracts for the provision of services. In accordance with Article 5, point (1)(c), of that Regulation, Article 5, point (1)(a), is applicable to contracts which are neither contracts for the sale of goods nor contracts for the provision of services. Third, it is apparent from the scheme of Article 5, point (1), of the Brussels I Regulation that the Community legislature adopted distinct rules of jurisdiction, first, for contracts for the sale of goods and contracts for the provision of services and, secondly, for all other kinds of contracts which are not covered by specific provisions of that regulation. Extending the scope of application of the second indent of Article 5, point (1)(b), of the Brussels I Regulation would amount to circumventing the intention of the Community legislature in that respect and would have a negative impact on the effectiveness of Article 5, point (1)(c) and (a) (see paras 29-34, 39-44, operative part 1).

2. In order to determine, under Article 5, point (1)(a), of the Brussels I Regulation, the court having jurisdiction over an application for remuneration owed pursuant to a contract under which the owner of an intellectual property right grants to its contractual partner the right to use that right, reference must continue to be made to the principles which result from the case-law of the Court of Justice on Article 5, point (1), of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.

In that regard, in the light of the fact that the wording of Article 5, point (1)(a), of the Brussels I Regulation is identical in every respect to that of the first sentence of Article 5, point (1), of the 1968 Brussels Convention, and the aim to ensure true continuity, as is apparent from recital 19 in the preamble to the Brussels I Regulation (No 44/2001), it must be considered that the Community legislature intended, in relation to the Brussels I Regulation, to maintain, for all contracts other than those concerning the sale of goods and the provision of services, the principles established by the Court in relation to the 1968 Brussels Convention, regarding, in particular, the obligation to take into consideration, and the determination of, the place of its execution.

It follows that, in the absence of any reason for interpreting the two provisions differently, consistency and legal security require that Article 5, point 1)(a), of the Brussels I Regulation be given a scope identical to that of the corresponding provision of the 1968 Brussels Convention, so as to ensure a uniform interpretation of the 1968 Brussels Convention and the Brussels I Regulation (see paras 48-51, 53, 55, 57, operative part 2).


ECJ 3 May 2007 ‘Color Drack v Lexx’ (Case C-386/05, ECR 2007 p. I-03699)

1. The reason for the rule of special jurisdiction in matters relating to a contract contained in Article 5, point (1), of the Brussels I Regulation, which reflects an objective of proximity, is the existence of a close link between the contract and the court called upon to hear and determine the case.

Under that rule the defendant may be sued in the court for the place of performance of the obligation in question, since that court is presumed to have a close link to the contract.

In order to reinforce the primary objective of unification of the rules of jurisdiction whilst ensuring their predictability, the Brussels I Regulation defines that criterion of a link autonomously in the case of the sale of goods.

Pursuant to the first indent of Article 5, point (1)(b), of that Regulation, the place of performance of the obligation in question is the place in a Member State where, under the contract, the goods were delivered or should have been delivered (see paras 22-25).

2. The first indent of Article 5, point (1)(b), of the Brussels I Regulation must be interpreted as applying where there are several places of delivery within a single Member State. That provision seeks to unify the rules of conflict of jurisdiction and, accordingly, to designate the court having jurisdiction directly, without reference to the domestic rules of the Member States, while protecting the regulation’s objectives of predictability of the rules of jurisdiction and of proximity between the dispute and the court called upon to hear and determine the case. However, the applicability of that provision does not necessarily confer concurrent jurisdiction on a court for any place where goods were or should have been delivered. By designating autonomously as ‘the place of performance’ the place where the obligation which characterises the contract is to be performed, the Community legislature sought to centralise at its place of performance jurisdiction over disputes concerning all the contractual obligations and to determine sole jurisdiction for all claims arising out of the contract. Since the special jurisdiction under that provision is warranted, in principle, by the existence of a particularly close linking factor between the contract and the court called upon to hear the litigation, with a view to the efficient organisation of the proceedings, where there are several places of delivery of the goods, ‘place of performance’ must be understood, for the purposes of application of the provision under consideration, as the place with the closest linking factor between the contract and the court having jurisdiction.

In such a case, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of the former’s choice (see paras 30-34, 37, 39-40, 42, 45, operative part)


ECJ 10 April 2003 ‘Pugliese v Finmeccanica’ (Case C-437/00, ECR 2003 p. I-03573)

Article 5, point (1), of the Convention [Article 5, point (1), of the Brussels I Regulation] must be interpreted as meaning that, in a dispute between an employee and a first employer, the place where the employee performs his obligations to a second employer can be regarded as the place where he habitually carries out his work when the first employer, with respect to whom the employee's contractual obligations are suspended, has, at the time of the conclusion of the second contract of employment, an interest in the performance of the service by the employee to the second employer. The existence of such an interest must be determined on a comprehensive basis, taking into consideration all the circumstances of the case. When such an interest is lacking on the part of the first employer, Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] must be interpreted as meaning that the place where the employee carries out his work is the only place of performance of an obligation which can be taken into consideration in order to determine which court has jurisdiction (see paras 26, 28, 30, operative part 1-2).


ECJ 27 February 2002 ‘Weber v Universal Ogden’ (Case C-37/00, ECR 2002 p. I-02013)

1. Work carried out by an employee on fixed or floating installations positioned on or above the part of the continental shelf adjacent to a Contracting State, in the context of the prospecting and/or exploitation of its natural resources, is to be regarded as work carried out in the territory of that State for the purposes of applying Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation](see para. 36, operative part 1 ).

2. Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] must be interpreted as meaning that where an employee performs the obligations arising under his contract of employment in several Contracting States [Member States] the place where he habitually works, within the meaning of that provision, is the place where, or from which, taking account of all the circumstances of the case, he in fact performs the essential part of his duties vis-à-vis his employer.

In the case of a contract of employment under which an employee performs for his employer the same activities in more than one Contracting State [Member State], it is necessary, in principle, to take account of the whole of the duration of the employment relationship in order to identify the place where the employee habitually works, within the meaning of Article 5, point (1) [Article 5, point (1), Regulation]. Failing other criteria, that will be the place where the employee has worked the longest. It will only be otherwise if, in light of the facts of the case, the subject-matter of the dispute is more closely connected with a different place of work, which would, in that case, be the relevant place for the purposes of applying Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation].

In the event that the criteria laid down by the Court of Justice do not enable the national court to identify the habitual place of work, as referred to in Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation], the employee will have the choice of suing his employer either in the courts for the place where the business which engaged him is situated, or in the courts of the Contracting State in whose territory the employer is domiciled.

Moreover, national law applicable to the main dispute has no bearing on the interpretation of the concept of the place where an employee habitually works, within the meaning of Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation] (see paras 58, 62, operative part 2-3).


ECJ 19 February 2002 ‘Besix SA v WABAG’ (Case C-256/00, ECR 2002 p. I-01699)

The special jurisdictional rule in matters relating to a contract, laid down in Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] is not applicable where the place of performance of the obligation in question cannot be determined because it consists in an undertaking not to do something which is not subject to any geographical limit and is therefore characterised by a multiplicity of places for its performance. In such a case, jurisdiction can be determined only by application of the general criterion laid down in the first paragraph of Article 2 of that Convention [Article 2 of that Regulation](see para. 55, operative part).


ECJ 5 October 1999 ‘Leathertex v Bodetex’ (Case C-420/97, ECR 1999 p. I-06747)

1. In view of the allocation of jurisdiction under the preliminary ruling procedure provided for by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention, it is for the national court seised of an action founded on separate obligations arising from the same contract to assess the relative importance of the contractual obligations at issue for the purposes of the application of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], and for the Court of Justice to interpret the Convention in the light of the findings made in this respect by the national court. To alter the substance of the question referred by the latter for a preliminary ruling would be incompatible with the Court's function under the Protocol and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations pursuant to Article 5 of the Protocol and Article 20 of the Statute of the Court, bearing in mind that, under Article 20, only the order of the referring court is notified to the interested parties.

2. On a proper construction of Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation] the same court does not have jurisdiction to hear the whole of an action founded on two obligations of equal rank arising from the same contract when, according to the conflict rules of the State where that court is situated, one of those obligations is to be performed in that State and the other in another Contracting State [Member State]. While there are disadvantages in having different courts ruling on different aspects of the same dispute, the plaintiff always has the option, under Article 2 of the Convention [Article 2 of the Regulation], of bringing his entire claim before the courts for the place where the defendant is domiciled.


ECJ 28 September 1999 ‘GIE Groupe Concorde v Suhadiwarno Panjan’ (Case C-440/97, ECR 1999 p. I-06307)

On a proper construction of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], the place of performance of the obligation, within the meaning of that provision, is to be determined in accordance with the law governing the obligation in question according to the conflict rules of the court seised.

The principle of legal certainty, which is one of the objectives of the Convention, requires, in particular, that the jurisdictional rules which derogate from the basic principle of the Convention, such as Article 5, point (1) [Article 5, point (1), Regulation], should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued. Determination of the place of performance by reference to the nature of the relationship of obligation and the circumstances of the case would, as Article 5, point (1) [Article 5, point (1), Regulation], stands at present, be insufficient to resolve all questions linked to application of that provision. Moreover there is no risk that the law applicable to the determination of the place of performance will vary depending on the court seised, since the conflict rules enabling the law applicable to the contract to be determined have been standardised in the Contracting States by the Convention of 19 June 1980 on the Law applicable to Contractual Obligations.


ECJ 9 January 1997 ‘Rutten v Cross Medical Ltd’ (Case C-383/95, ECR 1997 p. I-00057)

Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] must be interpreted as meaning that where, in the performance of a contract of employment, an employee carries out his work in several Contracting States [Member States], the place where he habitually carries out his work, within the meaning of that provision, is the place where he has established the effective centre of his working activities. When identifying that place, it is necessary to take into account the fact that the employee spends most of his working time in one of the Contracting States [Member States] in which he has an office where he organizes his activities for his employer and to which he returns after each business trip abroad.


ECJ 29 June 1994 ‘Custom Made v Stawa’ (Case C-288/92, ECR 1994 p. I-02913)

The place of performance of the obligation in question was chosen as the criterion of jurisdiction in Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Rgulation] on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters because, being precise and clear, it fits into the general aim of the Convention, which is to establish rules guaranteeing certainty as to the allocation of jurisdiction among the various national courts before which proceedings in matters relating to a contract may be brought. That criterion makes it possible for a defendant to be sued in the courts for the place of performance of the obligation in question, even where the court thus designated is not that which has the closest connection with the dispute.

The court before which the matter is brought must determine in accordance with its own rules of conflicts of laws, including, if appropriate, a uniform law, what is the law applicable to the legal relationship in question and define, in accordance with that law, the place of performance of the contractual obligation in question. Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation] must be interpreted as meaning that, in the case of a demand for payment made by a supplier to his customer under a contract of manufacture and supply, the place of performance of the obligation to pay the price is to be determined pursuant to the substantive law governing the obligation in dispute under the conflicts rules of the court seised, even where those rules refer to the application to the contract of provisions such as those of the Uniform Law on the International Sale of Goods, annexed to the Hague Convention of 1 July 1964.


ECJ 13 July 1993 ‘Mulox v Hendrick Geels’ (Case C-125/92, ECR 1993 p. I-04075)

1. The terms used in the 1968 Brussels Convention [the Brussels I Regulation] must be interpreted autonomously. Only such an interpretation is capable of ensuring uniform application of the Convention [Regulation], the objectives of which include unification of the rules on jurisdiction of the Contracting States [Member States], so as to avoid as far as possible the multiplication of the bases of jurisdiction in relation to one and the same legal relationship and to reinforce the legal protection available to persons established in the Community by, at the same time, allowing the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued.

2. In view of the specific nature of contracts of employment, the place of performance of the obligation in question, for the purposes of applying Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation] must, in the case of such contracts, be determined by reference not to the applicable national law in accordance with the conflict rules of the court seised but, rather, to uniform criteria laid down by the Court of Justice on the basis of the scheme and the objectives of the Convention. The place of performance is the place where the employee actually carries out the work covered by the contract with his employer.

Where the employee performs his work in more than one Contracting State [Member State], the place of performance of the contractual obligation, within the meaning of that provision, must be defined as the place where or from which the employee discharges principally his obligations towards his employer.


ECJ 15 February 1989 ‘Six Constructions v Humbert’ (Case 32/88, ECR 1989 p. 00341)

Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] must be interpreted as meaning that, as regards contracts of employment, the obligation to be taken into consideration is the one which characterizes such contracts, in particular the obligation to carry out the agreed work. Where the obligation of the employee to carry out the agreed work was performed and had to be performed outside the territory of the Contracting States [Member States], Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation] is not applicable; in such a case jurisdiction is to be determined on the basis of the place of the defendant' s domicile in accordance with Article 2 of the Convention [Article 2 of the Regulation].


ECJ 15 January 1987 'Shenavai v Kreischer' (Case 266/85, ECR1987 p. 00239)

Whereas in the case of an action based on an obligation under a contract of employment or another contract with the same particularities for work other than on a self-employed basis the relevant obligation for the purpose of determining the place of performance within the meaning of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] is the obligation which characterizes that contract, the position is different where no such particularities exist, as in the case of most contracts, where the general rule applies that the relevant obligation is that on which the plaintiff's action is based. In a dispute concerning proceedings for the recovery of fees commenced by an architect commissioned to draw up plans for the building of houses, therefore, the obligation to be taken into consideration is the contractual obligation which forms the actual basis of the legal proceedings.


ECJ 26 May 1982 'Ivenel v Schwab' (Case 133/81, ECR 1982 p. 01891)

The obligation to be taken into account for the purposes of the application of article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation] in the case of claims based on different obligations arising under a contract of employment as a representative binding a worker to an undertaking is the obligation which characterizes the contract.


ECJ 4 March 1982 'Effer v Kantner' (Case 38/81, ECR 1982 p. 008250)

In the cases provided for in Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], the national court's jurisdiction to determine questions relating to a contract includes the power to consider the existence of the constituent parts of the contract itself, since that is indispensable in order to enable the national court in which proceedings are brought to examine whether it has jurisdiction under the Convention [Regulation]. Therefore the plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation], even when the existence of the contract on which the claim is based is in dispute between the parties.


ECJ 6 October 1976 'De Bloos v Bouyer' (Case 14-76)

1. For the purpose of determining the place of performance within the meaning of Article 5 of the 1968 Brussels Convention [Article 5 of the Brussels I Regulation] the obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff 's action is based. In a case where the plaintiff asserts the right to be paid damages or seeks the dissolution of the contract by reason of the wrongful conduct of the other party, the obligation referred to in Article 5, point (1) [Article 5, point (1), Regulation], is still that which arises under the contract and the non-performance of which is relied upon to support such claims.

2. In disputes in which the grantee of an exclusive sales concession charges the grantor with having infringed the exclusive concession, the word 'obligation' contained in Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation] on jurisdiction and the enforcement of judgments in civil and commercial matters refers to the obligation forming the basis of the legal proceedings, namely the contractual obligation of the grantor which corresponds to the contractual right relied upon by the grantee in support of the application.

In disputes concerning the consequences of the infringement by the grantor of a contract conferring an exclusive concession, such as the payment of damages or the dissolution of the contract, the obligation to which reference must be made for the purposes of applying Article 5, point (1), of the Convention [Article 5, point (1), of the Brussels I Regulation] is that which the contract imposes on the grantor and the non-performance of which is relied upon by the grantee in support of the application for damages or for the dissolution of the contract.

In the case of actions for the payment of compensation by way of damages, it is for the national court to ascertain whether, under the law applicable to the contract, an independent contractual obligation or an obligation replacing the unperformed contractual obligation is involved.


ECJ 6 October 1976 'Industrie Tessili v Dunlop' (Case 12-76)

The 1968 Brussels Convention [the Brussels I Regulation] must be interpreted having regard both to its principles and objectives and to its relationship with the Treaty. As regards the question whether the words and concepts used in the Convention [Regulation] must be regarded as having their own independent meaning and as being thus common to all the Member States or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought, the appropriate choice can only be made in respect of each of the provisions of the Convention to ensure that it is fully effective having regard to the objectives of Article 220 of the Treaty. The 'place of performance of the obligation in question' within the meaning of Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation] is to be determined in accordance with the law which governs the obligation in question according to the rules of conflict of laws of the court before which the matter is brought.

 


Place of performance specified by parties [Article 5, point (1)]


ECJ 3 May 2007 ‘Color Drack v Lexx’ (Case C-386/05, ECR 2007 p. I-03699)

1. The reason for the rule of special jurisdiction in matters relating to a contract contained in Article 5(1) of the Brussels I Regulation, which reflects an objective of proximity, is the existence of a close link between the contract and the court called upon to hear and determine the case.

Under that rule the defendant may be sued in the court for the place of performance of the obligation in question, since that court is presumed to have a close link to the contract.

In order to reinforce the primary objective of unification of the rules of jurisdiction whilst ensuring their predictability, the Brussels I Regulation defines that criterion of a link autonomously in the case of the sale of goods.

Pursuant to the first indent of Article 5, point (1)(b), of that Regulation, the place of performance of the obligation in question is the place in a Member State where, under the contract, the goods were delivered or should have been delivered (see paras 22-25).

2. The first indent of Article 5, point (1)(b), of the Brussels I Regulation must be interpreted as applying where there are several places of delivery within a single Member State. That provision seeks to unify the rules of conflict of jurisdiction and, accordingly, to designate the court having jurisdiction directly, without reference to the domestic rules of the Member States, while protecting the regulation’s objectives of predictability of the rules of jurisdiction and of proximity between the dispute and the court called upon to hear and determine the case. However, the applicability of that provision does not necessarily confer concurrent jurisdiction on a court for any place where goods were or should have been delivered. By designating autonomously as ‘the place of performance’ the place where the obligation which characterises the contract is to be performed, the Community legislature sought to centralise at its place of performance jurisdiction over disputes concerning all the contractual obligations and to determine sole jurisdiction for all claims arising out of the contract. Since the special jurisdiction under that provision is warranted, in principle, by the existence of a particularly close linking factor between the contract and the court called upon to hear the litigation, with a view to the efficient organisation of the proceedings, where there are several places of delivery of the goods, ‘place of performance’ must be understood, for the purposes of application of the provision under consideration, as the place with the closest linking factor between the contract and the court having jurisdiction.

In such a case, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of the former’s choice (see paras 30-34, 37, 39-40, 42, 45, operative part)


ECJ 20 February 1997 ‘MSG v SARL’ (Case C-106/95, ECR 1997 p. I-00911)

The 1968 Brussels Convention [the Brussels I Regulation] must be interpreted as meaning that an oral agreement on the place of performance which is designed not to determine the place where the person liable is actually to perform the obligations incumbent upon him, but solely to establish that the courts for a particular place have jurisdiction, is not governed by Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation], but by Article 17 [Article 23 of the Regulation], and is valid only if the requirements set out therein are complied with. Whilst the parties are free to agree on a place of performance for contractual obligations which differs from that which would be determined under the law applicable to the contract, without having to comply with specific conditions as to form, they are nevertheless not entitled, having regard to the system established by the Convention, to designate, with the sole aim of specifying the courts having jurisdiction, a place of performance having no real connection with the reality of the contract at which the obligations arising under the contract could not be performed in accordance with the terms of the contract.


ECJ 17 January 1980 'Zelger v Salinitri' (Case 56/79, ECR 1980 P. 00089)

1. The provisions of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], to the effect that in matters relating to a contract a defendant domiciled in a Contracting State [Member State] may be sued in the courts for the place of performance of the obligation in question, introduce a criterion for jurisdiction, the selection of which is at the option of the plaintiff and which is justified by the existence of a direct link between the dispute and the court called upon to take cognizance of it. By contrast, Article 17 of the Convention [Article 23 of the Regulation], which provides for the exclusive jurisdiction of the court designated by the parties in accordance with the prescribed form, puts aside both the rule of general jurisdiction - provided for in Article 2 [Article 2 Regulation] - and the rules of special jurisdiction - provided for in Article 5 [Article 5 Regulation] - and dispenses with any objective connexion between the legal relationship in dispute and the court designated. It thus appears that the jurisdiction of the court for the place of performance and that of the selected court are two distinct concepts and only agreements selecting a court are subject to the requirements of form prescribed by Article 17 of the Convention [Article 23 of the Regulation].

2. If the place of performance of a contractual obligation has been specified by the parties in a clause which is valid according to the national law applicable to the contract, the court for that place has jurisdiction to take cognizance of disputes relating to that obligation under Article 5, point (1), of the Convention [Article 5, point (1), of the Regulation], irrespective of whether the formal conditions provided for under Article 17 have been observed.

 


Maintenance [Article 5, point (2)]


ECJ 15 January 2004 ‘Freistaat Bayern v Jan Blijdenstein’ (Case C-433/01, ECR 2004 p. I-00981)

Article 5, point (2), of the 1968 Brussels Convention [Article 5, point (2), of the Brussels I Regulation], which provides for a special jurisdiction of the courts for the place where the maintenance creditor is domiciled or habitually resident in matters relating to maintenance, must be interpreted as meaning that it cannot be relied on by a public body which seeks, in an action for recovery, reimbursement of sums paid under public law by way of an education grant to a maintenance creditor, to whose rights it is subrogated against the maintenance debtor.Where the maintenance creditor has benefited from the grant to which he could lay claim, there is no need to deny the maintenance debtor the protection offered by Article 2 of the Convention [Article 2 of the Regulation], particularly as the courts of the defendant are better placed to determine the latter's resources (see paras 31, 34, operative part).


ECJ 27 February 1997 'Van den Boogaard v Laumen' (Case C-220/95, ECR 1997 Page I-01147)

If the reasoning of a decision rendered in divorce proceedings shows that the provision which it awards is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance and will therefore fall within the scope of the 1968 Brussels Convention [Brussels I Regulation] on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters. On the other hand, where the provision awarded is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention. A decision which does both these things may, in accordance with Article 42 of the Brussels Convention [Article 48 of the Brussels I Regulation], be enforced in part if it clearly shows the aims to which the different parts of the judicial provision correspond.

It follows that a decision rendered in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her former spouse must be regarded as relating to maintenance and therefore as falling within the scope of the Convention [Regulation] if its purpose is to ensure the former spouse's maintenance. The fact that in its decision the court of origin disregarded a marriage contract is of no account in this regard.


ECJ 20 March 1997 ‘Jackie Farrell v James Long’ (Case C-295/95, ECR 1997 p. I-01683)

The terms of the 1968 Brussels Convention [the Brussels I Regulation] must, in principle, be interpreted autonomously. Such autonomous interpretation is alone capable of ensuring uniform application of the Convention [Regulation], the objectives of which include unification of the rules on jurisdiction of the Contracting States [Member States], so as to avoid as far as possible multiplication of the bases of jurisdiction in relation to one and the same legal relationship, and reinforcement of the legal protection available to persons established in the Community by allowing both the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued.

Those considerations also apply to the term `maintenance creditor' in the first limb of Article 5, point (2), of the Convention [Article 5, point (2), of the Regulation], which must be interpreted as covering any person applying for maintenance, including a person bringing a maintenance action for the first time, without any distinction being drawn between those already recognized and those not yet recognized as entitled to maintenance.


ECJ 6 March 1980 ‘de Cavel v de Cavel’ (Case 120/79, ECR 1980, p. 00731)

The subject of maintenance obligations falls of itself within the concept of ‘civil and commercial matters’ within the meaning of the first paragraph of Article 1 of the 1968 Brussels Convention and accordingly comes within the scope of the Convention since it has not been excepted by the second paragraph of that Article. A maintenance claim falls within the scope of the 1968 Brussels Convention where its own subject-matter is one of the matters covered by the Convention even if it is ancillary to proceedings which, because of their subject-matter, do not come within the Convention's sphere of application.

 


Matters relating to tort, delict or quasi-delict [Article 5, point (3)]


ECJ 10 February 2009 ‘Allianz and Generali v West Tankers’ (Case C-185/07)

It is incompatible with the Brussels I Regulation (No 44/2001) for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement.

If, because of the subject-matter of the dispute, that is, the nature of the rights to be protected in proceedings, such as a claim for damages, those proceedings come within the scope of the Brussels I Regulation, a preliminary issue concerning the applicability of an arbitration agreement, including in particular its validity, also comes within its scope of application. It follows that the objection of lack of jurisdiction raised on the basis of the existence of an arbitration agreement, including the question of the validity of that agreement, comes within the scope of the Brussels I Regulation and that it is therefore exclusively for the court to rule on that objection and on its own jurisdiction, pursuant to Articles 1(2)(d) and 5, point (3), of that Regulation.

Accordingly, the use of an anti-suit injunction to prevent a court of a Member State, which normally has jurisdiction to resolve a dispute under Article 5, point (3), of the Brussels I Regulation, from ruling, in accordance with Article 1(2)(d) of that Regulation, on the very applicability of the Regulation to the dispute brought before it necessarily amounts to stripping that court of the power to rule on its own jurisdiction under that Regulation.

It follows, first, that an anti-suit injunction is contrary to the general principle that every court seised itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it. It should be borne in mind in that regard that the Brussels I Regulation, apart from a few limited exceptions, does not authorise the jurisdiction of a court of a Member State to be reviewed by a court in another Member State.

Secondly, in obstructing the court of another Member State in the exercise of the powers conferred on it by the Brussels I Regulation, namely to decide, on the basis of the rules defining the material scope of that Regulation, including Article 1(2)(d) thereof, whether that regulation is applicable, such an anti-suit injunction also runs counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under the Brussels I Regulation is based.

Lastly, if, by means of an anti-suit injunction, the national court were prevented from examining itself the preliminary issue of the validity or the applicability of the arbitration agreement, a party could avoid the proceedings merely by relying on that agreement and the applicant, which considers that the agreement is void, inoperative or incapable of being performed, would thus be barred from access to the court before which it brought proceedings under Article 5, point (3), of the Brussels I Regulation and would therefore be deprived of a form of judicial protection to which it is entitled.

This finding is supported by Article II(3) of The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, according to which it is the court of a Contracting State, when seised of an action in a matter in respect of which the parties have made an arbitration agreement, that will, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed (see paras 26-31, 33-34, operative part).


ECJ 20 January 2005 ‘Engler v Janus Versand’ (Case C-27/02, ECR 2005 p. I-00481)

Legal proceedings by which a consumer seeks an order, under the law of the Contracting State in which he is domiciled, that a mail order company established in another Contracting State award a prize ostensibly won by him is contractual in nature for the purpose of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], provided that, first, that company, with the intention of inducing the consumer to enter a contract, addresses to him in person a letter of such a kind as to give the impression that a prize will be awarded to him if he returns the ‘payment notice’ attached to the letter and, second, he accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced. On n the other hand, even though the letter also contains a catalogue advertising goods for that company and a request for a ‘trial without obligation’, the fact that the award of the prize does not depend on an order for goods and that the consumer has not, in fact, placed such an order has no bearing on that interpretation (see para. 61, operative part).


ECJ 5 February 2004 ‘Danmarks Rederiforening v LO Sverige’ (Case C-18/02, ECR 2004 p. I-01417)

Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation] must be interpreted as meaning that a case concerning the legality of industrial action, in respect of which exclusive jurisdiction belongs, in accordance with the law of the Contracting State [Member State] concerned, to a court other than the court which has jurisdiction to try the claims for compensation for the damage caused by that industrial action, falls within the definition of tort, delict or quasi-delict. For Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation] to apply to such a situation, it is sufficient that the industrial action concerned is a necessary precondition of sympathy action which may result in harm. It is not essential that the harm incurred be a certain or probable consequence of the industrial action in itself. Lastly, the application of that provision is not affected by the fact that the implementation of industrial action was suspended by the party giving notice of the action pending a ruling on its legality. see paras 28-29, 34, 38, operative part 1

Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation] on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the damage resulting from industrial action taken by a trade union in a Contracting State to which a ship registered in another Contracting State sails must not necessarily be regarded as having occurred in the flag State with the result that the shipowner can bring an action for damages against that trade union in the flag State. In that connection, the State in which the ship is registered must be regarded as only one factor, among others, assisting in the identification of the place where the harmful event took place. However, the flag State must necessarily be regarded as the place where the harmful event caused damage if the damage concerned arose aboard the ship in question (see paras 44-45, operative part 2).


ECJ 1 October 2002 ‘Karl Heinz Henkel’ (Case C-167/00, ECR 2002 p. I-08111)

The rules on jurisdiction laid down in the 1968 Brussels Convention [the Brussels I Regulation] must be interpreted as meaning that a preventive action brought by a consumer protection organisation for the purpose of preventing a trader from using terms considered to be unfair in contracts with private individuals is a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of that Convention [Article 5, point (3), of that Regulation]( see para. 50, operative part).


ECJ 17 September 2002 ‘Tacconi v HWS’ (Case C-334/00, ECR 2002 p. I-07357)

In circumstances characterised by the absence of obligations freely assumed by one party towards another on the occasion of negotiations with a view to the formation of a contract and by a possible breach of rules of law, in particular the rule which requires the parties to act in good faith in such negotiations, an action founded on the pre-contractual liability of the defendant is a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation]( see para. 27, operative part).


ECJ 11 July 2002 ‘Rudolf Gabriel’ (Case C-96/00, ECR 2002 p. I-06367)

The jurisdiction rules set out in the 1968 Brussels Convention [the Brussels I Regulation] are to be construed as meaning that judicial proceedings by which a consumer seeks an order, in the Contracting State in which he is domiciled and pursuant to that State's legislation, requiring a mail-order company established in another Contracting State to pay him a financial benefit in circumstances where that company had sent to that consumer in person a letter likely to create the impression that a prize would be awarded to him on condition that he ordered goods to a specified amount, and where that consumer actually placed such an order in the State of his domicile without, however, obtaining payment of that financial benefit, are contractual in nature in the sense contemplated in Article 13 (1), point (3), of that Convention [Article 15(1), point (3), of that Regulation]( see para. 60, operative part).


ECJ 27 October 1998 ‘Réunion SA v Spliethoff's’ (Case C-51/97, ECR 1998 p. I-06511)

An action by which the consignee of goods found to be damaged on completion of a transport operation by sea and then by land, or by which his insurer who has been subrogated to his rights after compensating him, seeks redress for the damage suffered, relying on the bill of lading covering the maritime transport, not against the person who issued that document on his headed paper but against the person whom the plaintiff considers to be the actual maritime carrier, does not fall within the scope of matters relating to a contract within the meaning of Article 5, point (1), of the 1968 Brussels Convention [Article 5, point (1), of the Brussels I Regulation], since the bill of lading in question does not disclose any contractual relationship freely entered into between the consignee and the defendant.

Such an action is, however, a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of that Convention (Article 5, point 3, Regulation], since that concept covers all actions which seek to establish the liability of a defendant and are not related to matters of contract within the meaning of Article 5, point (1) [Article 5, point (1) Regulation]. As regards determining the `place where the harmful event occurred' within the meaning of Article 5, point (3) [Article 5, point (3), Regulation], the place where the consignee, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine that place. Whilst it is true that the abovementioned concept may cover both the place where the damage occurred and the place of the event giving rise to it, the place where the damage arose can, in the circumstances described, only be the place where the maritime carrier was to deliver the goods.


ECJ 7 March 1995 ‘Fiona Shevill c.s. v Presse Alliance SA’ (Case C-68/93, ECR 1995 p. I-00415)  +

1. On a proper construction of the expression "place where the harmful event occurred" in Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation], the victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either before the courts of the Contracting State [Member State] of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State [Member State] in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised.

2. The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the plaintiff in an action in tort, delict or quasi-delict are not governed by the Convention [Regulation] but are determined in accordance with the substantive law designated by the national conflict of laws rules of the court seised on the basis of the Convention [Regulation], provided that the effectiveness of the Convention [Regulation] is not thereby impaired. The fact that under the national law applicable to the main proceedings damage is presumed in libel actions, so that the plaintiff does not have to adduce evidence of the existence and extent of that damage, does not therefore preclude the application of Article 5, point (3), of the Convention [Article 5, point (3), of the Regulation].


ECJ 26 March 1992 ‘Mario Reichert c.s. v Dresdner Bank AG’ (Case C-261/90, ECR 1992 p. I-02149)

An action provided for by national law, such as the so-called "action paulienne" in French law, the purpose of which is not to have the debtor ordered to make good the damage he has caused his creditor by fraudulent conduct, but to render ineffective, as against his creditor, the disposition which the debtor has made, cannot be regarded as a claim seeking to establish the liability of a defendant in the sense in which it is understood in Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation]. Such an action therefore does not come within the scope of that provision.

Whilst an action such as the action paulienne enables the creditor's security to be protected by preventing the dissipation of his debtor's assets, its purpose is that the court may vary the legal situation of the assets of the debtor and that of the beneficiary of the disposition effected by the debtor, and it cannot be described as a provisional or protective measure.

 


Place where the harmful event occurred [Article 5, point (3)]


ECJ 16 July 2009 ‘Zuid-Chemie v Philippo's’ (Case C-189/08)

Article 5, point (3), of the Brussels I Regulation must be interpreted as meaning that, in a dispute concerning the damage caused to an undertaking by the delivery of a contaminated chemical product which rendered unusable the fertiliser that the undertaking produces from a number of raw materials and by the processing of that product, the words ‘place where the harmful event occurred’ designate the place where the initial damage occurred as a result of the normal use of the product for the purpose for which it was intended.

Article 5, point (3), covers not only the place of the event giving rise to the damage but also the place where the damage occurred, such as the factory of an undertaking in which that undertaking processed a defective product causing material damage to the processed product suffered by the undertaking, going beyond the damage inherent in the product itself. In that connection, taking account of the place where the damage occurred, other than the place of the event giving rise to the damage, enables the court which is most appropriate to deal with the case to take jurisdiction, in particular on the grounds of proximity and ease of taking evidence. By contrast, to decide in favour only of the place of the event giving rise to the damage would, in a significant number of cases, cause confusion between the heads of jurisdiction laid down by Articles 2 and 5, point (3), of the Brussels I Regulation, with the result that the latter provision would, to that extent, lose its effectiveness (see paras 23-24, 29-32, operative part).


ECJ 10 June 2004 ‘Kronhofer v Maier c.s.’ (Case C-168/02, ECR 2004 p. I-06009)

Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation] must be interpreted as meaning that the expression ‘place where the harmful event occurred’ does not refer to the place where the claimant is domiciled or where his ‘assets are concentrated’ by reason only of the fact that he has suffered financial damage there resulting from the loss of part of his assets which arose and was incurred in another Contracting State [Member State].

The term ‘place where the harmful event occurred’ cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere. First, such an interpretation would mean that the determination of the court having jurisdiction would depend on matters that were uncertain and would thus run counter to the strengthening of the legal protection of persons established in the Community which, by enabling the claimant to identify easily the court in which he may sue and the defendant reasonably to foresee in which court he may be sued, is one of the objectives of the Convention [Regulation]. Second, it would be liable in most cases to give jurisdiction to the courts of the place in which the claimant was domiciled. The Convention [Regulation] does not favour that solution except in cases where it expressly so provides.


ECJ 1 October 2002 ‘Konsumenteninformation v Henkel’ (Case C-167/00, ECR 2002 p. I-08111)

The rules on jurisdiction laid down in the 1968 Brussels Convention [Brussels I Regulation] must be interpreted as meaning that a preventive action brought by a consumer protection organisation for the purpose of preventing a trader from using terms considered to be unfair in contracts with private individuals is a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of that Convention [Article 5, point (3) BR I] (see para. 50, operative part).


ECJ 17 September 2002 ‘Tacconi v HWS’ (Case C-334/00, ECR 2002 p. I-07357)

In circumstances characterised by the absence of obligations freely assumed by one party towards another on the occasion of negotiations with a view to the formation of a contract and by a possible breach of rules of law, in particular the rule which requires the parties to act in good faith in such negotiations, an action founded on the pre-contractual liability of the defendant is a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), Brussels I Regulation] (see para. 27, operative part).


ECJ 19 September 1995 ‘Marinari v Lloyds Bank ’ (Case C-364/93, ECR 1995 p. I-02719)

The term "place where the harmful event occurred" in Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation] does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Contracting State [Member State]. Although that term may cover both the place where the damage occurred and the place of the event giving rise to it, it cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere.


ECJ 7 March 1995 ‘Shevill c.s. v Presse Alliance’ (Case C-68/93, ECR 1995 p. I-00415)  +

1. On a proper construction of the expression "place where the harmful event occurred" in Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulaiton], the victim of a libel by a newspaper article distributed in several Contracting States [Member States] may bring an action for damages against the publisher either before the courts of the Contracting State [Member State] of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State [Member State] in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised.

2. The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the plaintiff in an action in tort, delict or quasi-delict are not governed by the Convention [Regulation] but are determined in accordance with the substantive law designated by the national conflict of laws rules of the court seised on the basis of the Convention [Regulation], provided that the effectiveness of the Convention [Regulation] is not thereby impaired. The fact that under the national law applicable to the main proceedings damage is presumed in libel actions, so that the plaintiff does not have to adduce evidence of the existence and extent of that damage, does not therefore preclude the application of Article 5, point (3), of the Convention [Article 5, point (3), of the Regulation].


ECJ 11 January 1990 ‘Dumez v Hessische Landesbank’ (Case C-220/88, ECR 1990 p. I-00049)

The expression "place where the harmful event occurred" contained in Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation] may refer to the place where the damage occurred, but the latter concept can be understood only as indicating the place where the event giving rise to the damage, and causing tortious, delictual or quasi-delictual liability to be incurred, directly produced its harmful effects upon the person who is the victim of that event. Accordingly, the rule on jurisdiction laid down in that Article cannot be interpreted as permitting a plaintiff pleading damage which he claims to be the consequence of the harm suffered by other persons who were direct victims of the harmful act to bring proceedings against the perpetrator of that act before the courts in the place in which he himself ascertained the damage to his assets.


ECJ 30 November 1976 'Bier v Mines de potasse' (Case 21-76, ECR 1976 p. 01735)

Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression 'place where the harmful event occurred', in Article 5, point (3), of the 1968 Brussels Convention [Article 5, point (3), of the Brussels I Regulation] must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it. The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage.

 


Civil claims brought to court in criminal proceedings [Article 5, point (4)]


ECJ 28 March 2000 ‘Krombach v Bamberski’ (Case C-7/98, ECR 2000 p. I-01935)

1. While the Member States in principle remain free, by virtue of the proviso in Article 27, point (1), of the 1968 Brussels Convention [Article 34, point (1), of the Brussels I Regulation], to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter for interpretation of the Convention [Regulation]. Consequently, while it is not for the Court to define the content of the public policy of a Member State, it is none the less required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from a court in another Member State (see paras 22-23).

2. The court of the State in which enforcement is sought cannot, with respect to a defendant domiciled in that State, take account, for the purposes of the public-policy clause in Article 27, point (1), of the Convention [Article 34, point (1) of the Regulation], of the fact, without more, that the court of the State of origin based its jurisdiction on the nationality of the victim of an offence (see para. 34 and operative part).

3. Recourse to the public-policy clause in Article 27, point (1), of the Convention [Article 34, point (1) of the Regulation] can be envisaged only where recognition or enforcement of the judgment delivered in another Member State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order (see para. 37).

4. Recourse to the public-policy clause in Article 27, point (1), of the Convention [Article 34, point (1), of the Regulation] must be regarded as being possible in exceptional cases where the guarantees laid down in the legislation of the State of origin and in the Convention [Regulation] itself have been insufficient to protect the defendant from a manifest breach of his right to defend himself before the court of origin, as recognised by the European Convention on Human Rights. Consequently, Article II of the Protocol annexed to the Convention [Article 61 Brussels I Regulation], which recognizes the right of persons domiciled in one Member State, who are being prosecuted in the criminal courts of another Member State of which they are not nationals, to have their defence presented even if they do not appear in person only where the offence in question was not intentionally committed, cannot be construed as precluding the court of the State in which enforcement is sought from being entitled, with respect to a defendant domiciled in that State and prosecuted for an intentional offence, to take account, in relation to the public-policy clause in Article 27, point (1) [Article 34, point (1) BR I], of the fact that the court of the State of origin refused to allow the defendant to have his defence presented unless he appeared in person (see paras 44-45 and operative part).


ECJ 26 May 1981 ‘Rinkau’ (Case 157/80, ECR 1981 p. 01391)

1. The concept of an offence which was not intentionally committed appearing in Article II of the Protocol annexed to the 1968 Brussels Convention [now Article 61 of the Brussels I Regulation] must be regarded as an independent concept which must be explained by reference, first, to the objectives and scheme of the Convention [Regulation] and, secondly, to the general principles which the national legal systems have in common. It covers any offence the legal definition of which does not require, either expressly or as appears from the nature of the offence defined, the existence of intent on the part of the accused to commit the punishable act or omission.

2. The right to be defended without appearing in person, granted by Article II of the aforementioned Protocol [Article 61 of the Brussels I Regulation], applies in all criminal proceedings concerning offences which were not intentionally committed, in which the accused's liability at civil law, arising from the elements of the offence for which he is being prosecuted, is in question or on which such liability might subsequently be based.


Disputes arising out of a branch, agency or other establishment [Article 5, point (5)]


ECJ 6 April 1995 ‘Lloyd's v Bernard’ (Case C-439/93, ECR 1995 p. I-00961)

The expression "dispute arising out of the operations of a branch, agency or other establishment" in Article 5, point (5), of the 1968 Brussels Convention [Article 5, point (5), of the Brussels I Regulation] does not presuppose that the undertakings giving rise to the dispute, entered into by a branch in the name of its parent body, are to be performed in the Contracting State [Member State] in which the branch is established.


ECJ 9 December 1987 'SAR v Parfums Rothschild ' (Case 218/86, ECR 1987 p. 04905)

Article 5, point (5), of the 1968 Brussels Convention [Article 5, point (5), of the Brussels I Regulation] must be interpreted as applying to a case in which a legal entity established in a Contracting State [Member State] maintains no dependent branch, agency or other establishment in another Contracting State [Member State], but nevertheless pursues its activities there through an independent company with the same name and identical management which negotiates and conducts business in its name and which it uses as an extension of itself.


ECJ 18 March 1981 'Blanckaert v Trost' (Case 139/80, ECR 1981 p. 00819)

An independent commercial agent who merely negotiates business ( handelsvertreter (vermittlungsvertreter)), in as much as his legal status leaves him basically free to arrange his own work and decide what proportion of his time to devote to the interests of the undertaking which he agrees to represent and whom that undertaking may not prevent from representing at the same time several firms competing in the same manufacturing or marketing sector, and who, moreover, merely transmits orders to the parent undertaking without being involved in either their terms or their execution, does not have the character of a branch, agency or other establishment within the meaning of Article 5, point (5), of the 1968 Brussels Convention [Article 5, point (5), of the Brussels I Regulation].


ECJ 22 November 1978 'Somafer v Saar-Ferngas' (Case 33/78, ECR 1978 p. 02183)

1. The 1968 Brussels Convention [the Brussels I Regulation] must be interpreted having regard both to its principles and objectives and to its relationship with the Treaty. The question whether the words and concepts used in the Convention [Regulation] be regarded as having their own independent meaning and as being thus common to all the Contracting States [Member States] or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought must be so answered as to ensure that the Convention [Regulation] is fully effective in achieving the objects which it pursues.

2. The need to ensure legal certainty and equality of rights and obligations for the parties as regards the power to derogate from the general jurisdiction of Article 2 [Article 2 Regulation] requires an independent interpretation, common to all the Contracting States, of the concepts in Article 5, point (5), of the 1968 Brussels Convention [Article 5, point (5), of the Brussels I Regulation].

The concept of 'branch, agency or other establishment' implies a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension.

The concept of 'operations' comprises:
- actions relating to rights and contractual or non-contractual obligations concerning the management properly so-called of the agency, branch or other establishment itself such as those concerning the situation of the building where such entity is established or the local engagement of staff to work there;
- actions relating to undertakings which have been entered into at the above-mentioned place of business in the name of the parent body and which must be performed in the contracting state where the place of business is established and also actions concerning non-contractual obligations arising from the activities in which the branch, agency or other establishment within the above defined meaning, has engaged at the place in which it is established on behalf of the parent body.

It is in each case for the court before which the matter comes to find the facts whereon it may be established that an effective place of business exists and to determine the legal position by reference to the concept of 'operations' as above defined.


ECJ 6 October 1976 ‘De Bloos v Bouyer’ (Case 14-76, ECR 1976 p. 01497)

When the grantee of an exclusive sales concession is not subject either to the control or to the direction of the grantor, he cannot be regarded as being at the head of a branch, agency or other establishment of the grantor within the meaning of Article 5, point (5), of the 1968 Brussels Convention [Article 5, point (5), Brussels I Regulation].