Opinion of the Advocate General — ECLI:EU:C:2009:34
Date: 2009-01-27
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the judgment 1. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Court for the place of performance of the contractual obligation in question within the meaning of Article 5(1)(b) (Art. 50 EC; Council Regulation No 44/2001, Art. 5(1)(b), second indent; Council Directives 77/388, Art. 6(1), first subpara., and 2006/112, Art. 24(1)) 2. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Rules on jurisdiction in contractual matters within the meaning of Article 5(1)(a) (Council Regulation No 44/2001, Art. 5(1)(a); Convention of 27 September 1968, Art. 5(1), first sentence) 1. The second indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a contract under which the owner of an intellectual property right grants its contractual partner the right to use that right in return for remuneration is not a contract for the provision of services within the meaning of that provision. The concept of services implies, at the least, that the party who provides the services carries out a particular activity in return for remuneration. It cannot be inferred from a contract under which the owner of an intellectual property right grants its contractual partner the right to use that right in return for remuneration that such an activity is involved, because, in granting a right to use that property, the owner of an intellectual property right undertakes merely to permit the licensee to exploit it freely. That analysis cannot be called into question by arguments concerning the interpretation of the concept of ‘services’ within the meaning of Article 50 EC or the definition of that concept provided by the directives on value added tax or by the alleged requirement that the scope of application of Article 5(1)(b) be broadly delimited in relation to Article 5(1)(a). First, no element in the broad logic and scheme of Article 5(1) of Regulation No 44/2001 requires that the concept of ‘provision of services’ set out in the second indent of Article 5(1)(b) of that regulation be interpreted in the light of the Court’s approach to the freedom to provide services within the meaning of Article 50 EC. Second, contrary to the definition of that concept provided by the directives on value added tax, which is negative and, by its very nature, necessarily broad, under Article 5(1) of Regulation No 44/2001, when a contract for the sale of goods is not involved, jurisdiction is not determined only on the basis of the rules which apply to contracts for the provision of services. In accordance with Article 5(1)(c) of that regulation, Article 5(1)(a) is applicable to contracts which are neither contracts for the sale of goods nor contracts for the provision of services. Third, it is apparent from the scheme of Article 5(1) of Regulation No 44/2001 that the Community legislature adopted distinct rules of jurisdiction, first, for contracts for the sale of goods and contracts for the provision of services and, secondly, for all other kinds of contracts which are not covered by specific provisions of that regulation. Extending the scope of application of the second indent of Article 5(1)(b) of Regulation No 44/2001 would amount to circumventing the intention of the Community legislature in that respect and would have a negative impact on the effectiveness of Article 5(1)(c) and (a). (see paras 29-34, 39-44, operative part 1) 2. In order to determine, under Article 5(1)(a) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the court having jurisdiction over an application for remuneration owed pursuant to a contract under which the owner of an intellectual property right grants to its contractual partner the right to use that right, reference must continue to be made to the principles which result from the case-law of the Court of Justice on 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 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic. In that regard, in the light of the fact that the wording of Article 5(1)(a) of Regulation No 44/2001 is identical in every respect to that of the first sentence of Article 5(1) of the Brussels Convention, and the aim to ensure true continuity, as is apparent from recital 19 in the preamble to Regulation No 44/2001, it must be considered that the Community legislature intended, in relation to Regulation No 44/2001, to maintain, for all contracts other than those concerning the sale of goods and the provision of services, the principles established by the Court in relation to the Brussels Convention, regarding, in particular, the obligation to take into consideration, and the determination of, the place of its execution. It follows that, in the absence of any reason for interpreting the two provisions differently, consistency and legal security require that Article 5(1)(a) of Regulation No 44/2001 be given a scope identical to that of the corresponding provision of the Brussels Convention, so as to ensure a uniform interpretation of the Brussels Convention and Regulation No 44/2001. (see paras 48-51, 53, 55, 57, operative part 2)