Opinion of the Advocate General — ECLI:EU:C:2012:637
Date: 2012-10-18
Language of the case: French
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the impact assessment, Accompanying document to the Proposal for a regulation concerning the recast of Regulation No 44/2001 [SEC(2010) 1548 final, paragraph 2.3.1], states: ‘[t]he overwhelming majority of EU business involved in cross-border trade makes use of choice-of-court agreements (almost 70% of all companies and 90% of large companies)’. 13 – I would point out that this will however, change when The Hague Convention of Choice of Court Agreements concluded on 30 June 2005 (‘the 2005 Hague Convention’), the wording of which is available at www.hcch.net) comes into force, as it will then be a requirement for all the parties concerned to reside within the European Union in order for the provisions of Regulation No 44/2001 to take precedence over those of the Convention. The signing of that Convention on behalf of the European Community was approved by Council Decision 2009/397 of 26 February 2009 (OJ 2009 L 133, p. 1). 14 – As the agreement conferring jurisdiction may relate to ‘disputes which have arisen or which may arise’. 15 – This might be the case where a third party considers that extension of jurisdiction resulting from a clause conferring jurisdiction may be to its advantage, for example in the light of the previous decisions of the designated court or the applicable law according to the conflict-of-law rules of the Member State in which that court has its seat. 16 – Joined Cases C‑509/09 and C‑161/10 eDate Advertising and Martinez [2001] ECR I‑10269, paragraph 39 and the case-law cited. 17 – The 2005 Hague Convention does not address such enforceability. In the Explanatory Report to that Convention, Hartley, T., and Dogauchi, M., lean towards the use of a confrontational approach (see paragraph 97: ‘[p]rovided the original parties consent to the choice-of-court agreement, the agreement may bind third parties who did not expressly consent to it, if their standing to bring the proceedings depends on their taking over the rights and obligations of one of the original parties. Whether that is the case will depend on national law’, as well as paragraphs 142, 143 and 294). 18 – See, in particular, point 44 of the Opinion I delivered in Case C‑133/11 Folien Fischer and Fofitec, pending before the Court, and the case-law cited. 19 – Accordingly, classification of the concept of ‘agreement conferring jurisdiction’ which appears in Article 23 of that regulation may have an impact on the determination of its legal effect, as shown by the judgment in Case C‑214/89 Powell Duffryn [1992] ECR I‑1745, paragraph 11 et seq.). 20 – See point 18 et seq. of Advocate General Jacobs’ Opinion in Handte, cited above. 21– Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6). Article 1(2)(e) of that regulation excludes from its scope choice-of-court agreements. 22 – The law of the Member State in which the court seised has its seat, that of the Member State in which the court designated by the clause conferring jurisdiction has its seat, that applicable to the original contract containing that clause, or even that applicable to the contract concluded by the third party against whom the clause is relied upon (as proposed by the Spanish Government). 23 – See, by analogy, with regard to the Brussels Convention, Case C‑51/97 Réunion européenne and Others [1998] ECR I‑6511, paragraph 34 and the case-law cited. 24 – Case 12/76 [1976] ECR 1473. 25 – See the Commission proposal which led to the adoption of Regulation No 44/2001, which states that ‘[t]he alternative jurisdiction under Article 5(1) (contracts) has been reframed. The place of performance of the obligation underlying the claim will now be given an autonomous definition in two categories of situation: the sale of goods and the provision of services. This solution obviates the need for reference to the rules of private international law of the State whose courts are seised’ [COM (1999) 348 final, paragraph 4.2]. 26 – Resolution 2009/2140(INI), cited above, recital O and paragraph 13. 27 – As the concept of ‘parties’ within the meaning of this provision is not defined therein, it could a priori be extended to cover either the parties to an agreement conferring jurisdiction, or the parties to the proceedings of which a court is seised. 28 – That is to say that the courts which, without such a clause, would have had jurisdiction under Regulation No 44/2001, are prohibited from giving a ruling, unless the parties have decided otherwise. 29 – The Court having ruled that the purpose of the formalism required by Article 17 of the Brussels Convention was to furnish proof of the voluntary agreement relating to the choice of a court. See Case C‑106/95 MSG [1997] ECR I‑911, paragraph 15 and the case-law cited). 30 – In Powell Duffryn, cited above, the clause conferring jurisdiction as contained in the statutes of a company was declared to be enforceable as against all shareholders, on the grounds that those statutes must be regarded as a contract and that by becoming a shareholder in a company, the shareholder had agreed to be subject to all the provisions appearing in those statutes, even if he did not agree with some of those provisions. 31 – The Court found that it was possible for the third-party beneficiary under an insurance policy concluded between an insurer and a policy-holder to avail itself of a clause of that kind inserted into that contract even though it did not sign it itself (Case 201/82 Gerling Konzern Speziale Kreditversicherung and Others [1983] ECR 2503), but it precluded such a clause from being relied on against the third party beneficiary who had not agreed to it (Case C‑112/03 Société financière et industrielle du Peloux [2005] ECR I‑3707). 32 – See the summary in that regard in paragraph 23 of Russ, cited above. 33 – Article 13(2) of Regulation No 44/2001 expressly allows for a clause conferring jurisdiction to favour not only the policy-holder or the insured, but also the beneficiary of the insurance, even if that beneficiary is not a signatory to the contract. 34 – Similarly, I do not share the view of the German Government when it submits that Article 23(4) of Regulation No 44/2001 governs the effects of a clause conferring jurisdiction with regard to the settlor, trustee or beneficiary of a trust, without establishing whether or not they are original members or beneficiaries of the trust. It is my view that the subject of that text relates specifically to trusts and cannot be extended to relationships between manufacturers and sub-buyers. 35 – Accordingly, such a clause must not be worded in such a general manner as to include all possible disputes between the parties, irrespective of the contracts concluded by them. 36– See Handte, cited above, paragraph 17. 37 – See, inter alia, the recent judgment in Case C‑154/11 Mahamdia [2012] ECR, paragraph 60 et seq. 38 – See Castelletti, cited above (paragraph 46 et seq. and the case-law cited), where it is pointed out that Article 17 of the Brussels Convention equivalent to Article 23 of the regulation dispenses with any objective connection between the relationship in dispute and the court designated. 39– It states that ‘[t]he rules of jurisdiction must be highly predictable …’ 40– Case C‑533/07 Falco Privatstiftung and Rabitsch [2009] ECR I-3327, paragraph 22 and the case-law cited. 41 – See, to that effect, paragraph 1.1 of the proposal for a regulation COM(1999) 348 final, cited above, in which the ‘legal certainty as regards jurisdiction’ is linked to the ‘sound operation of the internal market’. 42 – On the link between the autonomous definition of a ground for jurisdiction and the objectives of predictability and unification of the rules of jurisdiction, see, in particular, Case C‑19/09 Wood Floor Solutions Andreas Domberger [2010] ECR I‑2121, paragraph 23. 43 – Pursuant to the general rules of jurisdiction laid down in Section 1 of Chapter II of Regulation No 44/2001 or the rules of special jurisdiction provided for in the subsequent sections thereof. 44 – Recital 11 to that regulation states that ‘the principle that jurisdiction is generally based on the defendant’s domicile … must always be available on this ground save in a few well-defined situations in which … the autonomy of the parties warrants a different linking factor’ (emphasis added). 45 – See, with regard to Article 17 of the Brussels Convention, Case 24/76 Estasis Salotti di Colzani [1976] ECR 1831, paragraph 7, and Case 25/76 Galeries Segoura [1976] ECR 1851, paragraph 6. 46 – Case C‑347/08 Vorarlberger Gebietskrankenkasse [2009] ECR I‑8661, paragraph 39 and the case‑law cited. 47 – Russ (paragraph 24 et seq.); Castelletti (paragraph 41 et seq.); and Coreck (paragraphs 23 to 27 and 30). 48 – See Estasis Salotti di Colzani and Galeries Segoura, cited above. 49 – The issue of the effects of the clause conferring jurisdiction vis-à-vis the insurer, subrogated in this instance to the rights of the third party rather than to a party to the original contract, is referred to by the national court only in the second question referred, but it could in fact be raised in the same terms for the first question referred. It seems clear to me that, where a subrogation has taken place in accordance with the applicable rules of law, the insurer who has compensated the sub-buyer has replaced the latter such that it may, as a rule, exercise all the rights belonging to that sub-buyer as against the person who may be liable for the insured event, under the same conditions, in particular with regard to the rules of jurisdiction. 50 – I note that in its Resolution 2009/2140(INI), referred to above, the Parliament refers expressly to the case of third parties who may be bound by a clause conferring jurisdiction contained in bills of lading and proposes adopting a substantive rule specifically in that regard, undoubtedly in view of the specific nature thereof. 51 – ‘Is the clause conferring jurisdiction effective as against the sub-buyer and its subrogated insurers even if …?’ (emphasis added). 52 – See, in particular, paragraph 16 et seq. 53 – That concept covers all actions which seek to establish the liability of a defendant and are not related to matters of contract. See, by analogy, with regard to the action by which a consignee of goods challenged a person which he held to be the actual carrier, Réunion européenne and Others, cited above (paragraph 22 and the case-law cited). 54 – Bearing in mind that such an obligation is the criterion for classification which the Court has repeatedly applied to define autonomously the concept of ‘matters relating to a contract’ within the meaning of Article 5(1) of the Brussels Convention and therefore of Regulation No 44/2001. See judgment in Case C‑27/02 Engler [2005] ECR I‑481, paragraph 50 and the case-law cited.