Supremo Tribunal de Justiça; 2021-10-07; 448/18.4T8FAR.E1.S1
Decision by national courts in the field of European Union law — ECLI:PT:STJ:2021:448.18.4T8FAR.E1.S1.5C
Date: 2021-10-07
Subject matter: Judicial cooperation in civil matters
Origin: Portugal

82021PT1007(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a matter of admissibility of a jurisdiction clause brought before the Supremo Tribunal de Justiça (hereinafter ‘the Supreme Court’).
A Portuguese company Geprocea I – Serviços de Engenharia, Lda. (hereinafter ‘the plaintiff’) filed a suit in Portugal against two companies: DRISCOLL’S Portugal – Produção e Comercialização de Frutas, Unipessoal, Lda., (hereinafter ‘defendant 1’), a Portuguese company, and DRISCOLL’S of Europe BV (hereinafter ‘defendant 2’), a Dutch company. The plaintiff supplied red berries for defendant 2, with whom it had signed a contract. Although defendant 1 had not signed the contract, the plaintiff claimed that it acted on behalf of defendant 2 and was, therefore, co-responsible for losses arising from a breach of contract, namely, payment for the fruit of under-market value. It also claimed that the clause in the contract attributing jurisdiction to a Dutch court should not apply for 2 reasons:
a) the contract was drafted in advance, imposed by the stronger party, and not freely negotiated by the parties; also, the plaintiff was not duly informed of the contents of the jurisdiction clause, making it null and void under the RJCCG (1) and Article 30(3) and Article 33(2) and (3) of the CPC (2), and
b) the relationship between both defendants and their co-liability in the case meant they had to be tried together in the same case, in Portugal, since it was impossible to determine the exact proportion of each defendant’s liability without delving deep into the matter within a single, cohesive trial. Allowing each defendant to be tried separately might cause both courts to deny jurisdiction, thereby denying justice.
The Court of First Instance ruled in favour of the defendants, as did the Court of Appeal’, both considering that, regarding defendant 1, the preliminary facts presented by the parties were enough to deny the claim without the need to go to trial to produce further evidence and, regarding defendant 2, Article 25 of the Brussels I Regulation (recast) (3) supersedes any national rule, which means the jurisdiction clause is valid, and the case should be brought before the Dutch court.
The Supreme Court ruled in favour of the plaintiff that which concerns defendant 1, namely; the preliminary facts were insufficient in order to form a secure factual basis for a ruling denying the plaintiff’s claim. The case should be sent back to the Court of First Instance for trial, in order to prove a sufficient number of facts needed to ensure a proper foundation for a final ruling on the matter. Also, the fact that the plaintiff used the expression ‘representative’ to describe how defendant 1 acted regarding defendant 2 may not necessarily mean a representative in a technical sense, but potentially only ‘lato sensu’. This would allow for the interpretation that there was a complex relationship between the defendants, which made both of them parties to the contract, and would require both to be tried together (whereas if defendant 1 acted as a mere representative, it would not be a legitimate party in the case). Article 5(3) of the CPC allows the judge to refine the legal classification of facts alleged by the parties.
Regarding defendant 2, the Supreme Court upheld the rulings of the Court of First Instance and the Court of Appeal. In this case, the clause was put in writing, as part of the contract, and the criteria for consent had been met under EU case law, such as Case C-222/15 (4) of the Court of Justice of the European Union.
(1) Decreto-Lei 446/85, de 25 de Outubro, Regime das Cláusulas Contratuais Gerais (Law on unfair terms in contracts).
(2) Código de Processo Civil (Code of Civil Procedure).
(3) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)
(4) Judgment of the Court of Justice of 7 July 2016, Hőszig Kft. v Alstom Power Thermal Services, C-222/15, ECLI:EU:C:2016:525, paragraphs 36 and 37.