Determining whether a legal relationship is one in tort, for the purposes of (now) Article 7(2) of the Brussels I Recast Regulation, is in principle subject to autonomous interpretation. National law ought not to feature (emphasised ia in Melzer). In the Brussels I Regulation, Article 5(3) features alongside Article 5(1)’s jurisdictional rule for contract. (In the Recast Regulation, Artt 7(1 and (2)). Sometimes, as in Brogsitter, both are present between two contractual parties and one needs to be separated from the other. In Kalfelis, the CJEU defined ‘tort’ as ‘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(1).‘
Tobias Lutzi’s review is very useful in reminding us of the need to distinguish the two tracts of the Kalfelis definition. Just focusing on Brogsitter might lead one into thinking that Article 5(1) and 5(3) [7(1) /7(2)] ‘dovetail’: i.e. if it is not the one, it is the other (with tort being the subordinate category). That is however clearly not the case: that it may have looked like this in Brogsitter is due to liability being present in any case: the issue was there where contractual liability stops and liability in tort takes over.
Article 5(3) therefore requires an ‘action which seeks to establish the liability of a defendant’ which leads the Advocate General here into lengthy review of the Austrian implementation of EU law on copyright levies. With respect, I do not think that is what is either called for or justified. Article 5(3) requires an autonomous, EU interpretation. Too much interference of national law spoils that broth – a point also made in Melzer. Moreover the application of the jurisdictional categories is just that: it determines jurisdiction only. Once that settled, the national courts regain their authority to requalify and indeed may still decide that there is no liability in tort (or contract, as the case may be) at all, but rather one in contract (or tort, as the case may be) or indeed none at all.
I feel Sharpston AG’s centre of gravity etc. modus operandi, suggested by her re distinguishing between Rome I and II in Ergo but (probably) not accepted by the Court, would have come in handy at the jurisdictional level in Austro Mechana, too.
The CJEU’s judgment here is one to look out for.
European private international law, second ed. 2016, Chapter 2, Heading 22.214.171.124