No national (tort) law, please. The ECJ in Melzer v MS Global.

In Case C-228/11 Melzer v MS Global, the court at Dusseldorf requested the Court of Justice to clarify Article 5(3) Brussels I, the special jurisdictional rule for tort: on the basis of the application of this rule in Bier, a defendant may be sued in the place where the damage occurred (locus damni) and, if different, where the action (or inaction) leading to that damage occurred (the locus delicti commissi) . Article 5(3), like Article 5(1), determines not just international jurisdiction [i.e. the courts of which Member State have jurisdiction], but also territorial jurisdiction within that State.

Mr Melzer, who is domiciled in Berlin, was solicited as a client and looked after by telephone by the company Weise Wertpapier Handelsunternehmen (‘WWH’), whose registered office is in Düsseldorf. That company opened an account for Mr Melzer with MF Global UK Ltd (‘MF Global UK’), a brokerage house located in London, which traded in stock market futures for Mr Melzer in return for corresponding fees. Mr Melzer brought proceedings before the Landgericht Düsseldorf claiming that MF Global UK should be ordered to pay him damages equivalent to the difference between what he had paid out and what he had received in the context of those transactions, namely EUR 171 075.12, with interest. W.W.H. has not been implicated in the proceedings. In support of his claims, Mr Melzer maintained that he had not been sufficiently informed about the risks involved in futures trading, so far as options contracts were concerned, either by WWH or by MF Global UK.

The court at Dusseldorf rejected its jurisdiction on the basis of locus damni, arguing that this had taken place in Berlin (Melzer’s domicile), not Dusseldorf. It does however argue that it has jurisdiction on the basis of the locus delicti commissi, based on a combination of Article 5(3) Brussels I and the German Civil Code. Under Paragraph 830 of that Code (Bürgerliches Gesetzbuch), entitled ‘Joint participants and common purpose’:

 ‘(1)      Where several persons have caused damage by the commission of an unlawful act undertaken in common, each of them shall be liable for that act. That is also the case even where it is impossible to determine which of the persons involved caused the damage by his act.

(2)      Instigators and accomplices shall be treated as joint participants of the act.

The attribution of W.W.H.’s actions to MS Global, in the view of the Dusseldorf court, gives it jurisdiction on the basis of Article 5(3). It asked the following of the Court of Justice:

‘In the context of jurisdiction in matters relating to tort or delict under Article 5(3) of Regulation [No 44/2001], where there is cross-border participation of several persons in a tort or delict, is reciprocal attribution of the place where the event occurred admissible for determining the place where the harmful event occurred?’

There is no trace in the Jurisdiction Regulation of any rule on attribution for acts committed in tort. There are however many arguments against allowing such attribution from creating extra fora:

The JR’s general rule determines jurisdiction in the domicile of the defendant. This principle may be subject to many exceptions, and to many a jurisdictional rule which trumps it, however it remains the principle. As emphasised repeatedly by the ECJ, exceptions to Article 2’s general rule must be interpreted strictly, for the exceptions would otherwise lead to too many potential jurisdictions. All the more so in the case at issue. Allegations of attributions are easily made, and it is not clear how far the Court can go in reviewing the merits of the argument at the jurisdictional stage.

A restrictive interpretation also serves the Regulation’s purpose, as emphasised by the ECJ, of predictability and reliability. A party may otherwise end up being pursued in courts in which it could not reasonably have foreseen to be sued.

Furthermore of course, the attributive rule at issue superimposes national law unto Article 5(3) JR. The Court’s emphasis on autonomous interpretation sits uneasily with that.

Alternative jurisdictional rules would have been possible to establish jurisdiction: Article 6’s rule on joinders (which would have required plaintiff to use WWH as an anchor defendant) comes to mind; as does Article 5(1)’s rule on contracts (although it may not have been easy to establish that the services under contract were or should have been provided in Dusseldorf).

The Court held on 16 May. It referred inter alia to Refcomp to emphasise the presumption against letting national law infiltrate the concepts used by the Regulation, and to many of the arguments referred to above, and held

Accordingly, the answer to the question referred is that Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that it does not allow the courts of the place where a harmful event occurred which is imputed to one of the presumed perpetrators of damage, who is not a party to the dispute, to take jurisdiction over another presumed perpetrator of that damage who has not acted within the jurisdiction of the court seised.

Geert.

‘Sale of Goods’ or ‘delivery of services’? Jaaskinen AG in Corman-Collins

In Case C-9/12 Corman-Collins, the questions referred are as follows:

Should Article 2 of Regulation No 44/2001,where appropriate in conjunction with Article 5(1)(a) and (b), be interpreted as precluding a rule of jurisdiction, such as that set out in Article 4 of the Belgian Law of 27 July 1961, which provides for the jurisdiction of Belgian courts where the exclusive distributor has its registered office in Belgian territory and where the distribution agreement covers all or part of that territory, irrespective of where the grantor of the exclusive distribution rights has its registered office, where the latter is the defendant?
Should Article 5(1)(a) of Regulation No 44/2001 be interpreted as meaning that it applies to an exclusive distribution of goods agreement, pursuant to which one party purchases goods from another party for resale in the territory of another Member State?
If Question 2 is answered in the negative, should Article 5(1)(b) of Regulation No 44/2001 be interpreted as meaning that it refers to an exclusive distribution agreement, such as that at issue between the parties?
If Questions 2 and 3 are answered in the negative, is the contested obligation in the event of the termination of an exclusive distribution agreement the obligation of the seller-grantor or that of the buyer-distributor?

Corman-Collins is registered in Belgium; La Maison du Whisky in France.  Jaaskinen AG justifiably replies to the first question in succinct fashion: where defendant is domiciled in a Member State other than the Member State of the forum, the Brussels I Regulation has priority over national jurisdictional rules (such as here: the 1961 Act on ‘concession’ agreements).

The 2nd and 3rd question are rephrased by the AG however also re-ordered: Article 5(1) b) of the Regulation, being the more specific, has priority over Article 5(1) a). Jaaskinen then points to an important difficulty: ‘concession’ agreements are not a concept known in EU law (in contrast, for instance, with ‘agency’). In view of the need for autonomous interpretation by the ECJ, the qualification or not of a contract as a ‘sale of goods’ cq ‘provision of services’ (two distinct categories employed by the Regulation), must not be left to national law (and ditto courts) to decide. The AG opts for ‘services’: sale of ‘goods’ is not the core distinguishing element in a ‘concession’ agreement – it is more than that: the holder of the concession rights is explicitly allowed by the other party, to distribute their goods in a given territory, indeed often this right is an exclusive right; holder and grantor often agree common sales techniques (indeed in the case at issue, use by the holder of a domain name indicating the grantor’s trading name); the concession agreement usually is a framework agreement, followed by individual sales agreements. Moreover, the holder commits to holding stock; to having an after sales service; frees the grantor from the requirement to have to establish their own distribution network in the territory; the grantor organises specific training sessions for the holder’s staff, etc. The holder therefore effectively provides a ‘service’, and jurisdiction has to be determined by Article 5(1) b), second indent.

Proof of whether such elements are present in the contractual relationship between parties, needs to be furnished by the party invoking the jurisdictional rule based on ‘services’; qualifications in accordance with lex fori are not relevant for such determination (European Law in other words harmonises qualification).

The final question, which the AG only entertains in subsidiary fashion, concerns the issue of what part of the contractual relationship needs to be withheld as ‘the obligation in question’ of Article 5(1)(a): ‘in matters relating to a contract, in the courts for the place of performance of the obligation in question;’ The concession holder in the case at issue (Corman-Collins) argues that where the grantor’s obligation entails delivery of the exclusive right for the holder to exercise an exclusive right of sale in a given territory, the suit for damages needs to be introduced in that territory.

‘The obligation in question’ was left undefined in both the Brussels Convention and the preparatory works. Indeed the Jenard Report is very brief on the special jurisdictional clause for contracts. In De Bloos the Court specified ‘For the purpose of determining the place of performance within the meaning of Article 5 (…) the obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff’s action is based’. Plantiff’s suit inevitably leans upon defendant’s contractual obligations: it is the latter which determines ‘the obligation in question’. Where that place of performance lies, however, remains subject to national law: the Court in Tessili v Dunlop held that it was in no position to impose a European definition. Jaaskinen AG does not venture to give one, either: outside of the specific categories of Article 5(1)(b), European conflicts law has no grip on the qualification of contracts and their ‘place of performance’ by national courts.

Geert.

Negative declarations for tort are covered by Article 5(3) JR – The Court of Justice in Folien Fischer

Does Article 5(3) JR cover an action for declaration as to the non-existence of liability? This was the question in Folien Fischer and it was answered by the ECJ in the affirmative.

Article 5(3) holds a special jurisdictional rule for tort:

A person domiciled in a Member State may, in another Member State, be sued: (…)

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

Jurisdiction is established under Article 5(3) for the court of the place where the harmful event occurred ‘or may occur’.

The question on negative declarations for liability in tort was referred for a preliminary ruling by the German Bundesgerichtshof in the course of a dispute between, on the one hand, Folien Fischer AG (‘Folien Fischer’) and Fofitec AG (‘Fofitec’), companies established in Switzerland, and, on the other hand, Ritrama SpA, which has its registered office in Italy. Folien Fischer and Fofitec had been accused of essentially infringement of competition law in their sales practice and in Fofitec’s refusal to grant a license to Ritrama for one of its patents. Ritrama had issued a shot across the bows in sending Folien Fischer a letter alleging the incompatibility with competition law of its commercial practices.

Folien Fischer subsequently took the case to court first, in Hamburg, where it was found to be inadmissible for lack of international jurisdiction. Hamburg had taken its cue from that part of German scholarship which  argued that negative declarations are not covered by Article 5(3), thus leaving Folien Fischer no choice but to seek that declaration in Italy. Upon appeal the issue came before the ECJ.

Unlike Jaaskinen AG, the ECJ itself did not think that the reversal of roles in a negative declaration of liability, merits the non-application of Article 5(3) and the Bier formula. Jaaskinen AG had in so many words suggested that although the Court does not expressly say so in Bier, its holding in that case had a strong whiff about it of protecting the presumed victim, who is generally the claimant in the proceedings. The Court itself laid more emphasis on negative and positive declarations of liability essentially relating to the same matters of law and fact.

Post Bier, the ECJ has had to continue massaging the consequences of that seminal judgment. Bier threatened to open the floodgates to too many potential fora. I believe the Court was wrong in Bier to connect jurisdiction to applicable law (which it did when it found that a variety of fora had ‘natural’ links to the case by virtue of applicable law, or evidence). However follow-up case-law in the meantime (and as often reported on this blog) has taken on large dimensions. Bier /Mines de Potasse now has a large constituency: A complete revisit of the arguments in Bier is probably a tall order (pun intended I fear).

Geert.

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