European Civil law: 1968 Brussels Convention (case law)

Case Law 1968 Brussels Convention

Article 7 - 12a of the 1968 Brussels Convention

ECJ 26 May 2005 ‘GIE c.s. v Zurich España and Soptrans’ (Case C-77/04, ECR 2005 p. I-04509)

Third-party proceedings between insurers based on multiple insurance are not subject to the rules of special jurisdiction in matters relating to insurance in Section 3 of Title II of the 1968 Brussels Convention. In affording the insured a wider range of jurisdiction than that available to the insurer and in excluding any possibility of a clause conferring jurisdiction for the benefit of the insurer, the provisions of that section reflect an underlying concern to protect the insured, who in most cases is faced with a predetermined contract, the clauses of which are no longer negotiable, and is the weaker party economically. No special protection is justified since the parties concerned are professionals in the insurance sector, none of whom may be presumed to be in a weaker position than the others (see paras 17, 20, 24, operative part 1).

ECJ 13 July 2000 ‘ Josi Reinsurance v UGIC’ (Case C-412/98, ECR 2000 p. I-05925)

1. Title II of the 1968 Brussels Convention 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, point 2, (2), Article 8 (1), point 2 and Article 14 (1) of the 1968 Brussels 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 ).

2. The rules of special jurisdiction in matters relating to insurance set out in Articles 7 to 12a of the 1968 Brussels Convention do not refer to disputes between a reinsurer and a reinsured in connection with a reinsurance contract. In affording the insured a wider range of jurisdiction than that available to the insurer and in excluding any possibility of a clause conferring jurisdiction for the benefit of the insurer, those rules reflect an underlying concern to protect the insured, who in most cases is faced with a predetermined contract the clauses of which are no longer negotiable and is the weaker party economically. No particular protection is justified as regards the relationship between a reinsured and his reinsurer. Since both parties to the reinsurance contract are professionals, neither of whom can be presumed to be in a weak position compared with the other party to the contract ( see paras 64, 66, 76, and operative part 2).

3. Although the rules of special jurisdiction in matters relating to insurance set out in Articles 7 to 12 of the 1968 Brussels Convention do not refer to disputes between a reinsured and his reinsurer in connection with a reinsurance contract, they are, on the other hand, fully applicable where, under the law of a Contracting State, the policy-holder, the insured or the beneficiary of an insurance contract has the option to approach directly any reinsurer of the insurer in order to assert his rights under that contract as against that reinsurer. In such a situation, the plaintiff is in a weak position compared with the professional reinsurer, so that the objective of special protection inherent in Article 7 et seq. of the Convention justifies the application of the special rules which it lays down ( see para. 75 ).

Article 12 of the 1968 Brussels Convention

ECJ 12 May 2005 ‘Peloux v Axa Belgium’ (Case C-112/03, ECR 2005 p. I-03707)

A jurisdiction clause conforming with Article 12, point 3, of the 1968 Brussels Convention, being a provision that allows a policy-holder and an insurer who, when the contract is entered into, are domiciled or habitually resident in the same Contracting State to confer jurisdiction on the courts of that State, even where the harmful event may occur abroad, cannot be relied on against a beneficiary under that contract who has not expressly subscribed to that clause and is domiciled in a Contracting State other than that of the policy-holder and the insurer.

First, the enforceability of such a clause would deprive that beneficiary of the opportunity to bring proceedings before the courts for the place where the harmful event occurred or to bring proceedings before the courts of his own domicile, by compelling him to pursue the enforcement of his rights against the insurer before the courts of the latter’s domicile, and, second, it would enable the insurer, in proceedings against the beneficiary, to have recourse to the courts of his own domicile. The result of such an interpretation would be to accept a conferral of jurisdiction for the benefit of the insurer and to disregard the aim of protecting the economically weakest party, in this case the beneficiary, who must be entitled to bring proceedings and defend himself before the courts of his own domicile.