Tribunal da Relação de Lisboa; 2021-09-23; 30851/16.8T8LSB.L1-6
Decision by national courts in the field of European Union law — ECLI:PT:TRL:2021:30851.16.8T8LSB.L1.6.32
Date: 2021-09-23
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Portugal

82021PT0923(51)_ENG_SUMJURE
JURE summary
JURE summary
I) A single claim for damages may be based on two different grounds: contractual liability and non-contractual liability.
II) The concurrence of applicable rules, the consumption of one rule by the other or their cumulative application depends on the consideration of the circumstances of the case (including the terms of the contract) and the objectives pursued by the applicable rules.
III) A contract concluded between a party domiciled in Portugal (hereinafter ‘the plaintiff’) and several parties domiciled in Switzerland (‘the defendants’) is international to the extent that it contains elements relating to different national legal systems.
IV) Since the elements of connection with the Portuguese and Swiss legal systems are established, the international jurisdiction of the respective courts is governed by the new Lugano Convention (1).
V) Following Article 8(2) of the Constituição da República Portuguesa (2), which establishes the principle of automatic application of international law, including conventional law, the new Lugano Convention takes precedence over national legislation.
VI) The link between the new Lugano Convention (which has also been ratified by the European Union) and the law of the European Union, established by Article 64(1) of the new Lugano Convention, must be assessed on a case-by-case basis. According to Article 1(1) and (2) of Protocol 2 to the new Lugano Convention, the national courts are obliged to respect the interpretation of the Court of Justice of the European Union (CJEU) concerning the corresponding provisions of the Brussels I Regulation (3) and the Brussels II Regulation (4).
VII) For an agreement conferring jurisdiction to be valid under the new Lugano Convention, it must be in writing, or if oral, it must be evidenced in writing. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.
VIII) The connecting factor ‘matters relating to a contract’ must be examined in light of the objectives pursued by the new Lugano Convention, particularly those  establishing a link between the court and the matter which it is called upon to examine and decide, which facilitates the conduct of proceedings and judicial review.
IX) In the case of a contract for the provision of services, the connecting factor is the place where the services were provided, not the place where the obligation to pay damages is to be performed. However, a plaintiff that is classified as a consumer may choose to bring proceedings in the courts of the State in which they are domiciled.
X) Jurisdiction in matters of non-contractual liability is conferred on the court at the place where the harmful event occurred or may occur; provided that such liability arises in a contractual context, the diversity of the basis of the claim for damages does not affect the determination of jurisdiction, since it must still be included within the broad and independent concept of ‘matters relating to a contract’ for the purposes of the new Lugano Convention.
XI) The application of the rules of jurisdiction for the protection of consumers is subject to the condition that the other party pursues commercial or professional activities and that such activities are directed to the State bound by the new Lugano Convention.
XII) According to the CJEU, the criterion for classifying a person as a consumer is that the contract in question was concluded outside the person’s trade or profession.
XIII) The provision of information about the activities of the seller or supplier on a website is not a sufficient indicator for applying the concept of ‘directing the activity’.
(1)      Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2)      Constitution of the Portuguese Republic.
(3)      Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(4)      Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.