In Case C-45/13 Andreas Kainz v Pantherwerke AG, the ECJ held on the determination of locus delicti commissi, the place giving rise to the damage, in the case of defective products. It held this was the place where the product in question was manufactured. The special jurisdictional rules of Article 5 are in effect forum conveniens applications: they are intended to enable the court objectively best placed to determine whether the elements establishing the liability of the person sued are present, to assume jurisdiction. For product liability cases, this includes inter alia the possibility of gathering evidence in order to establish the defect in question.
Pantherwerke AG is an undertaking established in Germany which manufactures and sells bicycles. Mr Kainz, resident in Salzburg, purchased a bicycle manufactured by Pantherwerke from Funbike GmbH, a company established in Austria. On 3 July 2009, while riding that bicycle in Germany, Mr Kainz suffered a fall and was thereby injured. The place of the event giving rise to the damage is, Mr Kainz claims, located in Austria as the bicycle was brought into circulation there, in the sense that the product was there made available to the end-user by way of commercial distribution.
Mr Kainz argued specifically that the Courts should take into account not only the interests of the proper administration of justice but also those of the person sustaining the damage, thereby enabling him to bring his action before a court of the Member State in which he is domiciled. The ECJ disagreed, at 20:
‘although it is apparent from recital 7 in the preamble to Regulation No 864/2007 that the European Union legislature sought to ensure consistency between Regulation No 44/2001, on the one hand, and the substantive scope and the provisions of Regulation No 864/2007, on the other, that does not mean, however, that the provisions of Regulation No 44/2001 must for that reason be interpreted in the light of the provisions of Regulation No 864/2007. The objective of consistency cannot, in any event, lead to the provisions of Regulation No 44/2001 being interpreted in a manner which is unconnected to the scheme and objectives pursued by that regulation.’
This is a statement I like a lot and have advocated for some time. In general, I find the link between applicable law and jurisdiction (often leading to Gleichlauf-type considerations; such as in Article 22’s exclusive jurisdictional rules) not very attractive.