European Civil law: 1968 Brussels Convention (case law)

Case Law 1968 Brussels Convention

Article 2 of the 1968 Brussels Convention

ECJ 1 March 2005 ‘Owusu v Jackson c.s.’ (Case C-281/02, ECR 2005 Page I-01383)

1. Article 2 of the Convention is applicable in proceedings where the parties before the courts of a Contracting State are domiciled in that State and the litigation between them has certain connections with a third State but not with another Contracting State, that provision thus covering relationships between the courts of a single Contracting State and those of a non-Contracting State, rather than relationships between the courts of several Contracting States.

Although, for the jurisdiction rules of the Convention to apply at all, the existence of an international element is required, the international nature of the legal relationship at issue need not necessarily derive, for the purposes of the application of that provision, from the involvement, either because of the subject-matter of the proceedings or the respective domiciles of the parties, of a number of Contracting States. The involvement of a Contracting State and a non-Contracting State, for example because the claimant and one defendant are domiciled in the first State and the events at issue occurred in the second, would also make the legal relationship at issue international in nature.

Moreover, the designation of the court of a Contracting State as the court having jurisdiction on the ground of the defendant’s domicile in that State, even in proceedings which are, at least in part, connected, because of their subject-matter or the claimant’s domicile, with a non-Contracting State, is not such as to impose an obligation on that State so that the principle of the relative effect of treaties is not affected (see paras 25-26, 30-31, 35).

2. The Convention precludes a court of a Contracting State from declining to exercise jurisdiction on the ground that a court in a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.

No exception on the basis of the forum non conveniens doctrine was provided for by the authors of the Convention and application of the doctrine is liable to undermine the predictability of the rules of jurisdiction laid down by the Convention, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. Moreover, allowing forum non conveniens would be likely to affect the uniform application of the rules of jurisdiction contained in the Convention and the legal protection of persons established in the Community (see paras 37, 41-43, operative part).

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

The special jurisdictional rule in matters relating to a contract, laid down in Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, 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 ( see para. 55, operative part).

ECJ 13 July 2000 'Group Josi v UGIC' (Case C-412/98, ECR 2000 Page I-05925)

Title II of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, is in principle applicable where the defendant has its domicile or seat in a Contracting State, even if the plaintiff is domiciled in a non-member country. It would be otherwise only in exceptional cases where an express provision of the Convention provides that the application of the rule of jurisdiction which it sets out is dependent on the plaintiff's domicile being in a Contracting State. Such is the case where the plaintiff exercises the option open to him under Article 5(2), point 2 of the first paragraph of Article 8 and the first paragraph of Article 14 of the Convention, and also in matters relating to prorogation of jurisdiction under Article 17 of the Convention, solely where the defendant's domicile is not situated in a Contracting State ( see paras 47, 61, and operative part 1 ).

ECJ 5 October 1999 ‘Leathertex v Bodetex’ (ECR 1999 Page 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(1) of the Convention, 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(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, 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. 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, of bringing his entire claim before the courts for the place where the defendant is domiciled.

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

Article 5(1 ) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that, as regards contracts of employment, the obligation to be taken into consideration is that 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, Article 5(1 ) of the Convention 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.