Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 16 June 2022 (1)
Case C‑265/21
AB,
AB-CD
v
Z EF
(Request for a preliminary ruling from the cour d’appel de Bruxelles (Court of Appeal, Brussels (Belgium))
(Reference for a preliminary ruling – Area of freedom, security and justice – Jurisdiction and the recognition and enforcement of decisions in civil and commercial matters – Regulation (EC) No 44/2001 – Article 5(1) – Jurisdiction in matters relating to a contract – Concept of ‘matters relating to a contract’ – Action seeking a declaration of a right to property based on two successive contracts – Contract to be taken into consideration for the purpose of determining the place of the obligation serving as the basis of the claim – Law applicable to contractual obligations – Regulation (EC) No 593/2008)
I.      Introduction
1.        The questions referred by the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) concern, in essence, the interpretation of Article 5(1) of Regulation (EC) No 44/2001 (2) and Article 4 of Regulation (EC) No 593/2008. (3)
2.        The first of those provisions, the interpretation of which is central to the present request for a preliminary ruling, lays down the rules of special jurisdiction in matters relating to a contract which, in certain situations, allow a plaintiff to sue a defendant before the courts of a Member State other than that in which the defendant is domiciled, in derogation from the general rule laid down in Article 2(1) of Regulation No 44/2001.
3.        In the present case, it falls to be determined whether that provision is applicable in a dispute relating to an action, based on two contracts, for recognition of a property right in 20 works of art, in spite of the absence of a direct contractual link between the parties to the dispute, who are the descendants of the parties to the first contract.
4.        In that context, the referring court is asking the Court, in essence, about the scope of the evolution of its case-law in that area of law. The present reference for a preliminary ruling will therefore lead the Court to address, once again, the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001. It will be necessary, in the present case, to provide the referring court with all the information that will enable it to determine whether the recent judgments of the Court (4) must be regarded as reversing its previous case-law on the interpretation of that provision.
5.        As I shall explain in detail, I am of the view that Article 5(1) of Regulation No 44/2001 is intended to apply in a situation such as that at issue in the main proceedings.
II.    Legal framework
A.      Regulation No 44/2001
6.        Under Section 1 of Chapter II of Regulation No 44/2001, entitled ‘General provisions’, Article 2(1) of that regulation provides:
‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’
7.        Under Section 2 of Chapter II of that regulation, entitled ‘Special jurisdiction’, Article 5(1) provides:
‘A person domiciled in a Member State may, in another Member State, be sued:
1.      (a)      in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b)      for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
–        in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
–        in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,
(c)      if subparagraph (b) does not apply then subparagraph (a) applies;’
B.      Regulation No 593/2008
8.        Article 4 of Regulation No 593/2008, concerning the applicable law in the absence of choice by the parties, provides:
‘1.      To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows:
(a)      a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;
(b)      a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence;
…
2.      Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.
3.      Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply.
4.      Where the law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract shall be governed by the law of the country with which it is most closely connected.’
III. The facts at the origin of the dispute in the main proceedings, the questions for a preliminary ruling and the procedure before the Court
9.        X EF and Y EF, a married couple and the parents of Z EF, the defendant in the main proceedings, were German artists who, inter alia, had created 20 typologies (‘the works of art’) which formed part of an international exhibition held in 1977.
10.      CD, the mother-in-law of AB and the mother of AB-CD, the plaintiffs in the main proceedings, ran an art gallery in Liège (Belgium). In late 1980 or early 1981, the works of art were handed over to CD, as were, subsequently, the certificates of authenticity of those works.
11.      By an agreement of 26 January 2007, the plaintiffs in the main proceedings bought the works of art from CD. CD died on 24 November 2007 and Y EF also died in the same year.
12.      In August 2013, AB entrusted the works of art to Christie’s in order for them to be sold at auction. In 2014, Christie’s contacted X EF, who confirmed that she was the owner of those works. The auction sale of the works was suspended.
13.      The plaintiffs in the main proceedings assert that those works had been bought by CD, while the defendant in the main proceedings claims that they had been deposited at CD’s gallery for public display with a view to being sold.
14.      On 20 June 2014, the plaintiffs in the main proceedings brought the present proceedings, seeking, in essence, a declaration that they were the sole proprietors of the works of art and an injunction preventing X EF from claiming title in them.
15.      X EF was sued before the tribunal de première instance francophone de Bruxelles (French-speaking Court of First Instance, Brussels, Belgium) and contended, principally, and relying on Regulation No 44/2001, that that court lacked competence and jurisdiction on the ground that her domicile was in Germany. In the alternative, she submitted that the claim against her was inadmissible or unfounded and claimed restitution of the works of art. On 10 October 2015, X EF died and the defendant in the main proceedings took over the action.
16.      By decision of 22 November 2016, the tribunal de première instance francophone de Bruxelles (French-speaking Court of First Instance, Brussels) declared that it lacked jurisdiction ratione territoriae. In that regard, it held that its jurisdiction could not be established on the basis of Article 5(1) of Regulation No 44/2001, on the ground that there was no contractual link between the parties in question.
17.      The plaintiffs in the main proceedings appealed against that judgment before the cour d’appel de Bruxelles (Court of Appeal, Brussels). They maintain that CD acquired the works of art by a contract of sale, that the action should be classified as ‘relating to a contract’ and that, as the place of performance is in Belgium, the Belgian courts have jurisdiction. The defendant in the main proceedings asserts, on the other hand, that the works of art were the subject of a contract of deposit and that, as the action – in his contention – seeks to establish ‘title’ in the works, the determination of the court with jurisdiction comes under Article 2(1) of Regulation No 44/2001, which confers jurisdiction on the German courts.
18.      As to whether the action brought by the plaintiffs in the main proceedings is covered by ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, the referring court finds that there is no direct contractual relationship between the two parties to the dispute. However, it considers, having regard to the recent judgments of the Court in such matters, (5) that it is possible that the requirement to establish an ‘obligation freely assumed’ no longer means, as had been the case since the judgment in Handte, (6) that that obligation was assumed between the parties to the dispute, but means only that the plaintiff bases his or her action against the defendant on a legal obligation freely assumed by one person towards another. (7) According to the referring court, not only did the Court make clear that all obligations arising under in the contract non-performance of which is relied on to support a claimant’s action must be considered to come within the meaning of matters relating to a contract, (8) but it also considered that, like an actio pauliana, an action for compensation (9) is covered by the concept of ‘matters relating to a contract’ provided that the cause of the action is itself an obligation freely assumed. (10)
19.      The referring court considers that, even where it is a matter of specific situations beyond which such an interpretation cannot be supported, the Court nonetheless asserted that the rule of special jurisdiction in matters relating to a contract, laid down in Article 5(1) of Regulation No 44/2001, is based not on the identity of the parties but on the cause of action. (11)
20.      In those circumstances, the Cour d’appel de Bruxelles (Court of Appeal, Brussels), by decision of 1 April 2021, received at the Court Registry on 26 April 2021, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must the concept of “matters relating to a contract”, within the meaning of Article 5(1) of [Regulation No 44/2001]:
be interpreted as requiring the establishment of a legal obligation freely assumed by one person towards another, which forms the basis of the plaintiff’s action, and is that the position even if the obligation was not freely assumed by the defendant and/or towards the plaintiff?
If the answer is in the affirmative, what must the degree of connection between the legal obligation freely assumed and the plaintiff and/or the defendant be?
(2)      Does the concept of “action” on which the plaintiff “relies”, like the criterion used to distinguish whether an action comes within the concept of matters relating to a contract within the meaning of Article 5(1) of [Regulation No 44/2001] or within “matters relating to tort, delict or quasi-delict”, within the meaning of Article 5(3) thereof ((judgment of 24 November 2020, Wikingerhof, C‑59/19, EU:C:2020:950; “the judgment in Wikingerhof”,
paragraph 32)), entail verification of whether the interpretation of the legal obligation freely assumed seems to be indispensable for the purpose of assessing the basis of the action?
(3)      The legal action whereby a plaintiff seeks a declaration that he is the owner of an asset of which he has possession in reliance on a double contract of sale, the first entered into by the original joint owner of that asset (the husband of the defendant, who is also an original joint owner) with the person who sold the asset to the plaintiff, and the second between the latter two parties, come within the concept of matters relating to a contract within the meaning of Article 5(1) of [Regulation No 44/2001]?
(a)      Is the answer different if the defendant relies on the fact that the first contract was not a contract of sale but a contract of deposit?
(b)      If one of those situations comes within the concept of matters relating to a contract, which contract must be taken into consideration for the purpose of determining the place of the obligation which serves as the basis of the claim?
(4)      Must Article 4 of [Regulation No 593/2008] be interpreted as applying to the situation referred to by the third question and, if so, which contract must be taken into consideration?’
21.      Written observations were lodged by the parties to the main proceedings, by the Belgian Government and the European Commission. There was no hearing.
IV.    Analysis
A.      The admissibility of the fourth question
22.      Without formally pleading that the fourth question is inadmissible, the Commission claims that the referring court does not state the reasons why it is unsure as to the application of Article 4(1) of Regulation No 593/2008 to the contracts at issue in the main proceedings.
23.      It must be recalled that, according to settled case-law, which is now reflected in Article 94 of the Rules of Procedure of the Court, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling. (12)
24.      In the present case, it must be stated that the referring court has not set out the reasons that led it to submit its fourth question and that, consequently, it has failed to comply with the requirement laid down in Article 94 of the Rules of Procedure of the Court of Justice.
25.      I propose that the fourth question be declared inadmissible.
B.      Substance
26.      The first three questions seek, in essence, the interpretation of the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, as established in the Court’s case-law.
27.      The doubts expressed by the referring court, which essentially concern the scope of the evolution of the abundant case-law developed by the Court over the last 30 years, relate, first, to the fact that the Court’s interpretation of the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, is not uniform and, second, to the reversal of the case-law which the Court appears to have made by abandoning the restrictive interpretation of that concept.
28.      In this Opinion, I shall present briefly, first of all, some preliminary remarks relating, in particular, to the scheme, the objectives and the origins of Regulation No 44/2001 (Title 1). Next, I shall examine the relevant case-law of the Court relating to the independent concept of ‘matters relating to a contract’, within the meaning of Article 5(1) thereof, in order to clarify the scope of its evolution and to propose an answer to the first question (Title 2); and, finally, I shall analyse the second and third questions (Titles 3 and 4).
1.      Preliminary remarks
29.      In the first place, it should be recalled that Regulation No 44/2001, which replaced the Convention of 27 September 1968, (13) takes inspiration from that Convention and is intended to ensure its continuity. (14) Therefore, and as is clear from a consistent line of decisions, the interpretation provided by the Court in respect of the provisions of that convention is also valid for the provisions of that regulation whenever the provisions of those instruments may be regarded as ‘equivalent’. (15) That is the case of Article 5(1) of the Brussels Convention and of Article 5(1) of Regulation No 44/2001, which are drafted in virtually identical terms. That is also the case of the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of that regulation, since the amendments made to that provision concern only connecting factor used to determine the competent court with respect to contracts for the sale of goods and the provision of services, leaving the substance of the rest of the corresponding provision of the Brussels Convention unchanged. (16) Since the referring court asks the Court about the evolution of its recent case-law relating to that concept, I shall also refer in this Opinion to the relevant case-law relating to Article 7(1) of Regulation No 1215/2012, which has replaced Regulation No 44/2001.
30.      In the second place, it should be emphasised that, according to settled case-law, Article 5(1) of Regulation No 44/2001 should be interpreted in the light of the origins, objectives and scheme of that regulation. (17) More specifically, as regards the concept of ‘matters relating to a contract’, within the meaning of that provision, it should be borne in mind that, since the judgment in Peters Bauunternehmung, (18) concerning the interpretation of the Brussels Convention, the Court has held on numerous occasions that that concept should not be interpreted as referring to the classification which the applicable national law gives to the legal relationship at issue before the national court. That concept must, on the contrary, be interpreted independently, by reference to the scheme and objectives of Regulation No 44/2001, in order to ensure the uniform application of that concept in all Member States. (19) Thus, although the Court cannot give a definite and abstract definition of the concept of ‘matters relating to a contract’, it has however traced the outlines of that concept on a case-by-case basis, taking account of the legislative amendments and stating whether or not there was a contractual obligation.
31.      In that regard, the Court has been endeavouring, even today, to define the scheme and the objectives of Regulation No 44/2001 since the ‘birth’ of that regulation in the form of the Brussels Convention. In my view, it is important to provide a brief reminder, first, of the scope of the conditions for the application of Article 5(1) of that regulation and, second, of the difficulties posed by that provision in the context of a particularly abundant case-law. (20)
32.      As regards, first of all, the scheme of Regulation No 44/2001, it should be borne in mind that it was in the judgment in Peters Bauunternehmung (21) that the Court ruled for the first time on the relationship between the general rule that the courts of the Member State in which the defendant is domiciled are to have jurisdiction, laid down in Article 2(1) of that regulation, and special jurisdiction in ‘matters relating to a contract’, provided for in Article 5(1) of that regulation. In that judgment, the Court held that ‘Article 5
[of the Brussels Convention] makes provision in a number of cases for a special jurisdiction which the plaintiff may choose, in derogation from the general jurisdiction provided for in Article 2(1) of that convention’. (22) That finding has been repeatedly recalled by the Court in its case-law. (23)
33.      As regards, next, the objectives of Regulation No 44/2001, it should be observed that, according to recital 11 of that regulation, the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and that jurisdiction must always be available on this ground save in a few well-defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor. Furthermore, recital 12 of Regulation No 44/2001 states that, in addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.
34.      Last, I must also observe that the origins of Article 5(1) of Regulation No 44/2001 show that the rules of special jurisdiction are based on the consideration that ‘there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it’. (24) Accordingly, the options available to the plaintiff under that provision meet the requirements of the principle of proximity. (25)
35.      It is in the light of those preliminary remarks that I shall now analyse the questions submitted by the referring court.
2.      The first question
36.      By its first question, the referring court asks, in essence, whether Article 5(1) of Regulation No 44/2001 must be interpreted as meaning that its application presupposes the determination of a legal obligation freely assumed by one person towards another on which the plaintiff’s action is based, even where that obligation is not directly binding on the parties to the dispute. If that is the case, the referring court asks what the degree of attachment between the contractual obligation and those parties must be. By this question, the referring court asks the Court to confirm the concept of ‘matters relating to a contract’ as established in the Court’s recent case-law.
37.      As regards, in the first place, the particularities of the present case, the plaintiffs in the main proceedings base their action for recognition of a right to property on a contract of sale entered into by the mother of one of them, a gallery owner who acquired the works of art from two artists, the parents of the defendant in the main proceedings. The defendant maintains that the contract in question was not a contract of sale but a contract of deposit.
38.      As the referring court points out, the contract at issue was not entered into by the parties to the main proceedings, who are therefore not directly contractually bound.
39.      As regards, in the second place, the written observations submitted by the parties, the plaintiffs in the main proceedings and the Belgian Government maintain that the concept of ‘matters relating to a contract’ must be given a broad interpretation that will also allow third parties to rely on Article 5(1) of Regulation No 44/2001. However, the Belgian Government claims that the criterion laid down in the judgment in flightright should be applied not to situations in which the question arises as to who is the owner of an asset, as is the case here, but only to situations in which the claim is based on the contractual obligation itself. According to the Belgian Government, the Court’s recent case-law tends to lead to ‘forum shopping’, to the detriment of legal certainty.
40.      The defendant in the main proceedings and the Commission argue, in particular, that, in order for the action to be classified as ‘relating to a contract’, there must be a contractual link between the parties to the action. In that regard, the defendant in the main proceedings observes that special jurisdiction must be given a strict interpretation in order to preserve the objective of foreseeability and legal certainty of Regulation No 44/2001. As for the Commission, it maintains that, taking into account the case-law established by the Court in the judgment in Handte, (26) in a situation in which the plaintiff bases his or her action on a number of successive contracts, the special jurisdiction in matters relating to a contract does not apply, as the plaintiff and the defendant are not parties to the same contract. It therefore submits that the general rule that the courts of defendant’s Member State of domicile have jurisdiction should be applied.
41.      In the light of the wording of the first question and of the parties’ observations, I consider it necessary to analyse the relevant case-law of the Court.
(a)    The relevant case-law of the Court relating to the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001
42.      Article 5(1)(a) of No 44/2001 provides that a person domiciled in a Member State may, in another Member State, be sued in matters relating to a contract, in the courts ‘for the place of performance of the obligation in question’. In order to determine jurisdiction under that provision and to answer the question whether a dispute may be classified as a dispute ‘in matters relating to a contract’, the Court has provided an independent interpretation of the concept of ‘matters relating to a contract’, tending initially towards a restrictive interpretation of that concept and then towards a broader interpretation. Those two approaches determine in different ways the obligation which forms the basis of the claim and therefore the place of performance of that obligation. Admittedly, the Court has held that ‘the obligation whose place of performance determines judicial jurisdiction for the purposes of Article 5(1) [of Regulation No 44/2001] is that which arises under the contract and the non-performance of which is relied upon in support of the action’. (27) In spite of the clarity of that statement, the identification of that obligation is not always clear, as shown by the difficulties encountered in the interpretation of the concept of ‘matters relating to a contract’. (28)
43.      In that context, the question that arises is whether the Court has abandoned the restrictive interpretation in favour of a broader interpretation, thus reversing its previous case-law. That question is at the centre of the doubts that have given rise to the present questions for a preliminary ruling. In order to have a better grasp of that case-law and to be in a position to propose a useful answer, I consider it necessary to identify, in the case-law, those two lines of interpretation and the way in which they have evolved, and also the objectives of foreseeability and/or proximity of Regulation No 44/2001 on which the Court has relied in order to arrive at one interpretation or the other.
(1)    The restrictive interpretation of the concept of ‘matters relating to a contract’: the requirement of the existence of a contract between the parties to the dispute
44.      The concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, is an independent concept of EU law which serves to define the scope of that provision. (29)
45.      In order to define the outlines of that independent concept, the Court, in the early 1980s, applied a restrictive interpretation of the special rule of jurisdiction available to plaintiffs in matters relating to a contract (‘the restrictive interpretation’). The judgments in Peters Bauunternehmung and Handte are at the origin of that line of case-law.
46.      In the judgment in Peters Bauunternehmung, (30) the Court ruled on the relationship between the special rules and the general rule of jurisdiction. (31) Writers took the view that, in that judgment, the Court had ruled ‘in favour of a restrictive interpretation of anything that appeared to be an exception to Article 2 of the Brussels Convention’. (32)
47.      The Court then asserted, in the judgment in Kalfelis, (33) that, as derogations from the general principle, the rules of special jurisdiction were to be given a strict interpretation, (34) subsequently stating that they ‘must not lead to
an interpretation going beyond the situations envisaged by the [Brussels] Convention’. (35) Although that approach did not to my mind have the objective of limiting the scope of ‘matters relating to a contract’ (36) by applying a strict interpretation of the concept of ‘contractual obligation’, the Court nonetheless, in later judgments, gave a restrictive interpretation of that concept, basing itself on the fact that this was one of the exceptions to the general rule of jurisdiction.
48.      In the judgment in Handte, (37) the Court ruled for the first time on the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of the Brussels Convention, stating that that concept ‘is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another’. Thus, relying on the principle of foreseeability of the court in which the plaintiff must lodge his claim, (38) the Court held that ‘Article 5(1) of the Convention is to be understood as meaning that it does not apply to an action between a sub-buyer of goods and the manufacturer, who is not the seller, relating to defects in those goods or to their unsuitability for their intended purpose’. (39)
49.      On the basis of that judgment, it became clear that the restrictive interpretation applied by the Court limited the concept of ‘matters relating to a contract’ in such a way that that provision was applicable only to relationships between the contracting parties to the contract in question, that is to say, only to disputes between the parties to the contracts. For the purpose of the classification of the action, the decisive factor taken into account by the Court was the contractual relationship between the parties to the dispute.
50.      In that regard, I consider it important to emphasise that, in that line of case-law, (40) the Court, by interpreting Article 5(1) of the Brussels Convention or of Regulation No 44/2001 in the light of the objectives and the scheme of that convention or of that regulation, based the independent concept of ‘matters relating to a contract’ mainly on the objective of foreseeability. (41)
51.      While that restrictive interpretation of Article 5(1) of Regulation No 44/2001 and, therefore, of the concept of ‘matters relating to a contract’, long accepted in the case-law, (42) has been welcomed by some writers, (43) it has also attracted criticism from certain writers with respect not only to the strict approach to the relationship between the general rule and the special rules, but also to the restrictive definition of the concept of ‘matters relating to a contract’ and, therefore, of ‘contractual obligation’ given by the Court in its case-law.
52.      In the first place, as regards the scheme of Regulation No 44/2001, the writers who take issue with that approach consider that the existence of the general rule in Article 2 of that regulation must not on its own allow a narrow, or indeed restrictive, interpretation of Article 5 of that regulation to prevail and that such an interpretation must not be established to the detriment of the overall coherence of that regulation, (44) namely to ensure as far as possible the equality and uniformity of the rights and obligations which follow from it. (45) In particular, certain writers emphasise that it is merely a matter, as the Court has held, of avoiding ‘an interpretation going beyond the cases envisaged’ by the scheme of Regulation No 44/2001 (46) and that it would therefore be wrong to infer from the wording of Article 5(1) of that regulation that that provision is an exception which should be applied less frequently than Article 2 of that regulation. (47) In fact, the mere existence of special rules of jurisdiction, as such, increases the possibility that the defendant will be sued before the courts of a Member State other than the Member State in which he or she is domiciled. That possibility allows a balance to be ensured between the interests of the plaintiff and those of the defendant. (48)
53.      I share that view. Such an approach follows clearly from the judgment in Peters Bauunternehmung, where the Court had already made clear that ‘although Article 5 [of the Brussels Convention] makes provision in a number of cases for a special jurisdiction which the plaintiff may choose, this is because of the existence, in certainly clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings’. (49) It thus clear that the Court interprets that provision by reference, in particular, to the objective of proximity.
54.      That leads me to observe, in the second place, that the definition of the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, as employed by the Court in the judgment in Handte, (50) has also been the subject of criticism. Several writers have taken the view that that restrictive approach afforded too small a role to the courts specified in the contract to the detriment, in particular, of the principle of proximity (51) and that ‘a broader interpretation, appropriate for the underlying economic issues’, (52) should be applied.
55.      Therefore, for the reasons set out in the preceding points, (53) I am of the view that the strict interpretation of the relationship between the general rule and the special rules must not result in a restrictive interpretation being given to the concept of ‘matters relating to a contract’ nor, consequently, to the concept of ‘contractual obligation’. (54) A broader interpretation of the concept of ‘matters relating to a contract’ makes it possible to take the objective of proximity and sound administration of justice into account. (55) As recently observed in the literature, an interpretation that is too dogmatic and that gives excessive priority to legal certainty and, therefore, to the objective of foreseeability by comparison with the sound administration of justice and the objective of proximity is liable to cause the scheme to malfunction. (56) To my mind, the overall coherence of Regulation No 44/2001 means taking into account, in the interpretation of Article 5(1) of that regulation, the balance between the objective of proximity and sound administration of justice and the objective of foreseeability and legal certainty. (57) That balance between the objectives of the regulation also makes it possible to ensure a balance between the interests of the plaintiff and those of the defendant. It is sufficient to recall, in that regard, that it follows from the Court’s settled case-law that the independent concept of ‘matters relating to a contract’ must refer to the scheme and to the objectives of that regulation, in order to ensure that it is applied uniformly in all the Member States. (58) In any event, the interpretation of Article 5(1) of Regulation No 44/2001 must not render that provision otiose and must allow the rule of special jurisdiction which it contains to be effective. (59) The question, at this stage, is whether the tendency in the Court’s case-law towards a broader interpretation of that provision makes that possible. I think that it does.
(2)    The evolution of the Court’s case-law towards a broader interpretation: the requirement to identify a legal obligation freely assumed by one person towards another on which the plaintiff’s action is based
56.      It should be borne in mind that, in one of its first judgments concerning the interpretation of Article 5(1) of the Brussels Convention, the Court held that that that provision was applicable ‘even when the existence of the contract on which the claim is based is in dispute between the parties’. (60) It is already clear from that consideration, as Advocate General Jacobs would later observe, (61) that the Court had not considered that the scope of that provision was to be defined narrowly. In his Opinion, Advocate General Jacobs observed that the Court had already held that the scope of that provision extended to ‘close links of the same kind as those which are created between the parties to a contract’, including the relationship between an association and its members. (62) In his view, such an approach appeared to reflect the intention implied by the wording used in the provision’s various language versions. (63)
57.      Some years later, in the judgment in Tacconi, (64) the Court clearly stated that while ‘Article 5(1) [of Regulation No 44/2001]
does not require a contract to have been concluded’, (65) ‘it is nevertheless essential, for that provision to apply, to identify an obligation, since the jurisdiction of the national court is determined, in matters relating to a contract, by the place of performance of the obligation in question’. (66) However, that judgment still seems to limit the applicability of Article 5(1) of Regulation No 44/2001 to situations in which there is an obligation freely assumed by one party towards another, that is to say, an obligation which is binding on the parties to the dispute.
58.      Such a limitation was abandoned in the judgment in Engler, (67) in which the Court confirmed that Article 5(1) of Regulation No 44/2001 does not require the conclusion of a contract. (68) The Court clearly stated, with respect to its previous case-law, (69) that the application of the rule of special jurisdiction laid down in matters relating to a contract in that provision ‘is not interpreted narrowly by the Court’. (70) It held that the application of that provision ‘presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based’. (71) That broader definition of the concept of ‘matters relating to a contract’ is now consistent in the Court’s case-law. (72) That definition requires that two cumulative conditions be fulfilled in order for a claim to be covered by such matters: it must (i) relate to a legal obligation freely assumed by one person towards another; and (ii) be based on that obligation.
(i)    The first condition: the claim must relate to a legal obligation freely assumed by one person towards another
59.      It follows from the Court’s case-law that that first condition relates to a number of types of legal obligations. (73) First of all, in the judgment in Kareda (74) the Court defined that first condition in the light of its previous case-law. (75) In the context of a broader interpretation of the concept of ‘matters relating to a contract’, it held that contractual obligations include all obligations arising under a contract. (76)
60.      Next, it also included obligations which have their basis in ‘close links of the same kind as those which are created between the parties to a contract’. (77)
61.      Last, since, in order for an action to be covered by matters relating to a contract, it is necessary to identify the obligation which serves as a basis for a claim without the existence of a contract being required, (78) the Court has considered, in particular, that the obligations which are imposed not because of an agreement of wills, but because of a unilateral voluntary commitment by one person towards another, (79) and also tacit contractual relationships, (80) are covered by ‘matters relating to a contract’.
62.      However, as the two conditions in question are cumulative, the application of Article 5(1) of Regulation No 44/2001 does not depend solely on the identification of an obligation. It is also necessary for the claim to be based on that obligation.
(ii) The second condition: the claim must be based on that obligation.
63.      In the judgment in flightright, (81) the Court made clear that the rule of special jurisdiction in matters relating to a contract laid down in Article 5(1)(a) of Regulation No 44/2001 and in Article 7(1)(a) of Regulation No 1215/2012 is based not on the identity of the parties but on the cause of action. (82)
64.      In that regard, as Advocate General Saugmandsgaard Øe has stated, ‘by that condition, the Court … reserves the application of the rule of jurisdiction in “matters relating to a contract” … to claims which are of a contractual nature, that is to say, those which, in substance, principally raise questions of contract law – or, to put it differently questions which come within the scope of the law applicable to a contract (or “lex contractur”), within the meaning of Regulation [No 593/2008]. The Court thus ensures, in accordance with the objective of proximity underlying that provision, that the court with jurisdiction in respect of the contract essentially rules on such questions’. (83) The Advocate General emphasised that, since those provisions relating to the rule of special jurisdiction in matters relating to a contract do not apply solely to contracts, he was referring there to ‘all the legal rules that impose obligations because of a voluntary commitment given by one person to another’. (84)
(b)    Intermediate conclusion
65.      Having regard to the preceding considerations, it must be stated, in the first place, that the Court’s case-law relating to the interpretation of the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, cannot be considered to be uniform, which explains the difficulties which, even today, the national courts encounter when determining whether or not disputes are covered by such matters. (85)
66.      Initially, the Court tended towards a restrictive interpretation of the concept of ‘matters relating to a contract’, and considered that only disputes originating in a contract between the parties to the dispute were matters relating to a contract. (86) In the context of that interpretation, the Court referred, essentially, to the objectivity of foreseeability and legal certainty of the Brussels Convention or of Regulation No 44/2001. (87)
67.      The Court then inclined towards a broader interpretation of the concept of ‘matters relating to a contract’, and considered that a dispute is covered by that concept where the plaintiff bases his or her action against the defendant on a legal obligation freely assumed by one person towards another. It was in the judgment in Engler (88) that the Court, for the first time, clearly stated that it ‘does not interpret [Article 5(1) of Regulation No 44/2001] narrowly’. Then, in the judgments in Kareda (89) and flightright, (90) confirmed in its subsequent case-law, (91) it definitively abandoned the restrictive interpretation of that provision based on the ‘personalist’ approach to matters relating to a contract, (92) resulting from the judgment in Handte, (93) and adopted a broader approach.
68.      In the second place, it follows from that broader interpretation that an action brought by a plaintiff, even against a third party, must be classified as ‘relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, provided that it is based on a legal obligation assumed by one person towards another. (94) Consequently, the fact that, in the present case, the two parties to the dispute are not directly bound by a contract cannot affect the classification of that action as being covered by ‘matters relating to a contract’. All that matters is that the legal obligation on which the plaintiffs in the main proceedings rely originates in a contract, understood as an agreement between two persons, or in a legal relationship which may be treated as a contract since it creates ‘close links of the same kind as those which are created between the parties to a contract’. (95)
69.      In the context of that broader interpretation, it follows from the judgments in Kareda and flightright that the Court referred not only to the objective of foreseeability and legal certainty but also to the objective of proximity and sound administration of justice. (96)
70.      Thus, when the contractual obligation on which the plaintiff’s action is based has been identified, it is necessary to determine whether there is a particularly close connecting factor between the claim and the court which may be called upon to hear it, or whether the application of Article 5(1) of Regulation No 44/2001 makes it possible to facilitate the sound administration of justice. (97) To my mind, it is therefore necessary to ensure a balance between the objective of foreseeability and legal certainty and the objective of proximity and sound administration of justice pursued by that regulation. (98)
71.      In that regard, I recall that the Court has held, first, that it is essential to avoid, so far as possible, creating a situation in which a number of courts have jurisdiction in respect of one and the same contract, in order to preclude the risk of irreconcilable decisions and to facilitate the recognition and enforcement of judgments in States other than those in which they were delivered. (99) In fact, the reason for the adoption of the jurisdictional rule in Article 5(1) of the Brussels Convention was concern for sound administration of justice and efficacious conduct of proceedings: the court of the place of the contractual obligation giving rise to the action is to be performed will normally be the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence. (100)
72.      The Court has also held, second, that the principle of legal certainty requires that the jurisdictional rules which derogate from the basic principle of the Brussels Convention laid down in Article 2, such as the rule in Article 5(1) of that regulation, should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State of domicile, he or she may be sued. (101)
73.      In the present case, the argument of the defendant in the main proceedings that he could not foresee being sued before the referring court, which is the court of the place of performance of the obligations, where the works of art had been for more than 30 years, cannot succeed.
74.      That assessment is consistent with the principle of proximity and legal certainty and ensures a balance between the plaintiff’s interests and the defendant’s. In addition, such a solution allows the rule of jurisdiction set out in Article 5(1) of Regulation No 44/2001 to be effective.
75.      Having regard to the preceding considerations, I propose that the answer to the first question should be that Article 5(1) of Regulation No 44/2001 must be interpreted as meaning that its application presupposes the determination of a legal obligation freely assumed by one person towards another and on which the plaintiff’s action is based, even where that obligation is not directly binding on the parties to the dispute. When interpreting that provision, the national court must ensure that it respects the balance between the objective of foreseeability and legal certainty and the objective of proximity and sound administration of justice.
3.      The second question
76.      By its second question, the referring court seeks to ascertain whether an action is covered by ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, when it seems to be indispensable to examine the contractual obligation or, where appropriate, the content of the contract or contracts in question in order to determine the basis of the plaintiff’s action for the purpose of establishing the legal nature of that obligation. By this question, it asks the Court to confirm whether the criterion set out by the Court in paragraph 32 of the judgment in Wikingerhof may be applied, by analogy, for the purpose of determining the basis of an action to obtain recognition of a right to property, such as that at issue in the main proceedings. However, having regard to the fact that, in that case that gave rise to that judgment, the plaintiff claimed in his application that there had been a breach of an obligation imposed by law, and more precisely by competition law, (102) I consider that that criterion is not applicable in the present case. For those reasons, I consider that the question should be reformulated in order to allow the Court to give a useful answer.
77.      Consequently, I am of the view that the second question submitted by the referring court must be reformulated in such a way that, by that question, that court is seeking to ascertain whether, at the stage of verification of jurisdiction, in order to determine the basis of an action brought by the plaintiff to establish whether that action is covered by ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, the court hearing the action is required to examine the contractual obligation or, where appropriate, the content of the contract or contracts in question.
78.      It seems to me that the case-law provides the answer to that question. The Court has held that the objective of legal certainty requires that the national court seised should be able readily to decide whether it has jurisdiction, without having to consider the substance of the case. (103) As regards the application of that requirement in the context of the special jurisdiction, such as that at issue in the main proceedings, the Court has, on the one hand, held that a court hearing a contractual dispute may examine, even of its own motion, the essential preconditions for its jurisdiction, having regard to conclusive and relevant evidence adduced by the party concerned establishing whether in fact the contract exists. (104) On the other hand, it has stated that, at the stage at which jurisdiction is determined, the court seised does not examine either the admissibility or the substance of the application in the light of national law, but identifies only the points of connection with the State in which that court is sitting that support its claim to jurisdiction, under Article 5(1) of Regulation No 44/2001. Thus, that court may regard as established, solely for the purpose of ascertaining whether it has jurisdiction under that provision, the plaintiff’s assertions as regards the legal basis of the obligations on which his or her action is based. (105) The Court has further stated that, in the context of the determination of jurisdiction under Regulation No 44/2001, the court seised of a dispute must appraise all the material before it, including, where appropriate, the defendant’s allegations. (106)
79.      The fact that the action at issue in the main proceedings is an action for recognition of a property right has no impact on whether that action is covered by ‘matters relating to a contract’ and, accordingly, on the application of Article 5(1) of Regulation No 44/2001. All that matters is that the legal obligation on which the plaintiffs’ action is based arises under an original contract, as I stated in point 68 of this Opinion. I also note that the action brought by the plaintiffs in the main proceedings is based on the assertion that CD acquired, by that first contract, the property right in the works of art.
80.      Consequently, I propose that the answer to this question should be that, for the purpose of assessing the basis of an action by the plaintiff with a view to determining whether it is covered by ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, the court hearing the matter is not required, at the stage of verifying its jurisdiction, to examine the contractual obligation or, where appropriate, the content of the contract or contracts at issue. In order to ascertain whether the essential conditions of its jurisdiction are fulfilled, that court identifies only the points of connection with the State in which the court is situated that justify its jurisdiction under that provision and examines all the evidence before it, in particular the relevant claims of the plaintiff as to the nature of the obligations on which his or her action is based and, where appropriate, the allegations made by the defendant. The fact that the action at issue in the main proceedings is an action for recognition of a property right has no impact on whether that action is covered by ‘matters relating to a contract’ and, accordingly, on the application of Article 5(1) of Regulation No 44/2001.
4.      The third question
81.      By its third question, the referring court asks, in essence, whether Article 5(1) of Regulation No 44/2001 must be interpreted as meaning that an action for recognition of a right to property in a moveable asset, which is based on two contracts neither of which is binding on the parties to the dispute, is covered by ‘matters relating to a contract’, within the meaning of that provision, and, if so, which of those contracts must be taken into account for the purpose of determining the place of the obligation which serves as the basis of the claim.
82.      In the present case, by their action, the plaintiffs in the main proceedings seek recognition of their right to property in the works of art. As I have already stated, the particularities of this case relate to the fact that their action for recognition of their property right is based on two contracts, in spite of the absence of a direct contractual link between them and the defendant in the main proceedings.
83.      As regards, in the first place, whether a situation such as that at issue in the main proceedings, in which the contracts on which the plaintiff’s action is based are not binding on the parties to the dispute, is covered by ‘matters relating to a contract’, I consider, as is clear from my proposed answer to the first question, that that is the case. Furthermore, it follows from the line of argument developed by the referring court that it is possible to identify a legal obligation freely assumed between two persons, namely CD and the two artists, on which the action brought by the plaintiffs in the main proceedings is based. That obligation exists independently of the type of contract (a contract of sale or a contract of deposit) concluded between CD (107) and the two artists. The legal nature of the original contract concluded between those two parties is therefore unimportant when it has to be determined whether the referring court is able to identify a legal obligation, within the meaning of the Court’s case-law.
84.      As regards, in the second place, which contract must be taken into account for the purpose of determining the place of the obligation that serves as the basis for the claim, it should be borne in mind that the dispute in the main procedure has its origin in the first contract, the classification is at the heart of the dispute. In other words, that first contract is the original source of the rights and obligations at issue. Although the classification of that contract, as a ‘contract of sale’ or as a ‘contract of deposit’, is essential for the purpose of determining whether property in the works of art was transferred to CD, it is not for the Court but for the referring court to make that determination. The analysis of that contract for the purpose of determining its legal nature relates to the substance of the case.
85.      Admittedly, it is not necessary to determine whether the first contract is a contract of sale or a contract of deposit in order to answer the question whether the dispute in the main proceedings comes within the scope of Article 5(1) of Regulation No 44/2001. However, the classification of that contract is indispensable for the purpose of determining which provision is to be applied in the present case, Article 5(1)(a) or Article 5(1)(b) of that regulation, the latter provision relating solely to the sale of goods and the provision of services. In addition, the distinction between those two provisions does have an impact on the determination of the courts with jurisdiction in matters relating to a contract. (108)
86.      The referring court has not specifically addressed the question of the applicability of those provisions in the present case, nor has it asked the Court for clarification of that point. Nor have the parties addressed that question, which was not the subject of discussion between them. I shall therefore confine myself to making the following remarks.
87.      First of all, I observe that, in order to determine whether Article 5(1)(b) of Regulation No 44/2001 must apply to the dispute in the main proceedings, the referring court must determine whether, in the present case, that first contract may be classified as a ‘contract for the sale of goods’ or a ‘contract for the provision of services’. If so, that court must determine the place where, under the contract, the goods were or ought to have been delivered, (109) or, as the case may be, where the services were or ought to have been provided. (110) In that regard, I recall that that provision defines independently the connecting factors for contracts for the sale of goods and the provision of services. (111)
88.      If the referring court considers that Article 5(1)(b) of Regulation No 44/2001 is not intended to apply to the dispute in the main proceedings, (112) it will then have to apply Article 5(1)(a) thereof, which concerns all types of contracts other than those referred to in Article 5(1)(b) of that regulation. In that case, in order to determine the place of performance of the obligation in question, within the meaning of Article 5(1)(a) thereof, the referring court will have to apply the principle laid down in the judgment in Industrie Tessili Italiana Como, (113) according to which, first, an action may be brought before the courts of the place of performance of the obligation on which the action is based and, second, that place must be determined in accordance with the law which governs that contractual obligation at issue according to the rules of conflict of laws of the court before which the action was brought. (114)
89.       In the light of the foregoing considerations, I propose that the Court’s answer to the third question should be that an action for recognition of a property right in a moveable asset, when it is based on two agreements which are not directly binding on the parties to the dispute, is covered by ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001. The contract to be taken into account for the purpose of determining the place of the obligation that serves as the basis of the claim is the original contract forming the subject matter of the dispute.
V.      Conclusion
90.      In the light of all of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling submitted by the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) as follows:
(1)      Article 5(1) of Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of decisions in civil and commercial matters must be interpreted as meaning that its application presupposes the determination of a legal obligation freely assumed by one person towards another and on which the plaintiff’s action is based, even where that obligation is not directly binding on the parties to the dispute. When interpreting that provision, the national court must ensure that it respects the balance between the objective of foreseeability and legal certainty and the objective of proximity and sound administration of justice.
(2)      For the purpose of assessing the basis of an action with a view to determining whether it is covered by ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, the court hearing the matter is not required, at the stage of verifying its jurisdiction, to examine the contractual obligation or, where appropriate, the content of the contract or contracts at issue. In order to ascertain whether the essential conditions of its jurisdiction are fulfilled, that court identifies only the connecting factors with the State in which the court is situated that justify its jurisdiction under that provision and examines all the evidence before it, in particular the relevant claims of the plaintiff as to the nature of the obligations on which his or her action is based and, where appropriate, the allegations made by the defendant. The fact that the action at issue in the main proceedings is an action for recognition of a property right has no impact on whether that action is covered by ‘matters relating to a contract’ and, accordingly, on the application of Article 5(1) of Regulation No 44/2001.
(3)      The action for recognition of a property right in a moveable asset, when it is based on two agreements which are not directly binding on the parties to the dispute, is covered by ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001. The contract to be taken into account for the purpose of determining the place of the obligation that serves as the basis of the claim is the original contract forming the subject matter of the dispute.
1      Original language: French.
2      Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). Regulation No 44/2001 was repealed by 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 (OJ 2012 L 351, p. 1). Subject to certain exceptions, Regulation No 1215/2012 is applicable, in accordance with Article 81, only from 10 January 2015. In view of the date on which the main proceedings were brought, those proceedings continue to be governed by Regulation No 44/2001.
3      Regulation of the European Parliament and of the Council du 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).
4      Judgments of 15 June 2017, Kareda (C‑249/16, EU:C:2017:472; ‘the judgment in Kareda’); of 7 March 2018, flightright and Others (C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160; ‘the judgment in flightright’); of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805; ‘the judgment in Feniks’); and of 26 March 2020, Primera Air Scandinavia (C‑215/18, EU:C:2020:235; ‘the judgment in Primera Air Scandinavia’).
5      Judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 24 and the case-law cited).
6      Judgment of 17 June 1992 (C‑26/91, EU:C:1992:268; ‘the judgment in Handte’,
paragraph 15).
7      Judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 25 and the case-law cited).
8      Judgment in Kareda (paragraphs 30 and 31).
9      Judgment in flightright (paragraphs 57 to 63).
10      Judgment in Feniks (paragraphs 42 and 43).
11      Judgments in flightright (paragraph 61) and in Primera Air Scandinavia (paragraph 44).
12      See, in particular, judgments of 25 March 2021, Obala i lučice (C‑307/19, EU:C:2021:236, paragraph 49), and of 24 February 2022, Suzlon Wind Energy Portugal (C‑605/20, EU:C:2022:116, paragraph 31 and the case-law cited).
13      Convention concluded between the Member States within the framework of the fourth indent of Article 220 of the Treaty establishing the European Economic Community (which became the fourth indent of Article 293 EC) on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), which was subsequently amended by the successive Conventions relating to the accession of new Member States to that Convention (‘the Brussels Convention’).
14      See recital 19 of Regulation No 44/2001.
15      Judgment of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 27).
16      Judgment of 7 February 2013, Refcomp (C‑543/10, EU:C:2013:62, paragraph 20 and the case-law cited).
17      See, in particular, judgment of 3 May 2007, Color Drack (C‑386/05, EU:C:2007:262, paragraph 18).
18      Judgment of 22 March 1983 (34/82, EU:C:1983:87; ‘the judgment in Peters Bauunternehmung’,
paragraphs 9 and 10).
19      See, in particular, judgments in Handte (paragraph 10); of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 27); and in Feniks (paragraph 38 and the case-law cited).
20      The abundant case-law of the Court relating to Article 5(1) of the Brussels Convention and of Regulation No 44/2001 reveals the complexity of that provisions and the difficulties associated with its implementation. See, in particular, the Explanatory Report of Professor Fausto Pocar on the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007 (OJ 2009 C 319, p. 1; ‘the Pocar report’), paragraph 44 et seq., and, in particular, paragraph 46 of that report, where it is stated that, ‘notwithstanding the interpretation provided by the case-law, which has smoothed out some of the difficulties, the rules described above have been judged unsatisfactory by many’.
21      Paragraph 10 of that judgment. The case that gave rise to that judgment concerned an action to recover sums payable by a Germany company, a member of a Netherlands association, by virtue of an internal rule adopted by the organs of that association and binding on its members.
22      Judgment in Peters Bauunternehmung (paragraph 7).
23      See, recently, judgment in Wikingerhof (paragraph 26).
24      See the Report of Mr P. Jenard on the Brussels Convention of 1968 (OJ 1979 C 59, p. 1), in particular p. 22.
25      See, in that regard, Gaudemet-Tallon, H., Compétence et exécution des jugements en Europe. Règlement 44/2001. Convention de Bruxelles (1968) et de Lugano (1988 et 2007), 4th Edition, LGDJ, Paris, 2010, pp. 159 and 160: ‘It is therefore the concept of proximity (territorial proximity or procedural proximity, as the case may be) that explains the options made available by that text.’
26      Paragraph 15 of that judgment.
27      See, in particular, judgments of 14 December 1977, de Bloos (59/77, EU:C:1977:207, paragraphs 14 and 15), and of 19 February 2002, Besix (C‑256/00, EU:C:2002:99, paragraph 44).
28      See, in particular, the Pocar report, p. 42.
29      See, in particular, judgments in Peters Bauunternehmung (paragraph 10); of 8 March 1988, Arcado (9/87, EU:C:1988:127, paragraph 10); and, recently, in Wikingerhof (paragraph 25).
30      Paragraph 11: ‘Although Article 5 [of the Brussels Convention] makes provision in a number of cases for a special jurisdiction which the plaintiff may choose, this is because of the existence, in certain clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings.’
31      See point 32 of this Opinion.
32      See, in particular, Gaudemet-Tallon, H., op. cit., p. 161.
33      Judgment of 27 September 1988 (189/87, EU:C:1988:459, paragraph 19).
34      The judgment in Kalfelis  concerned the concept of ‘matters relating to tort’, but the Court subsequently applied that assertion by analogy in judgments concerning the concept of ‘matters relating to contract’. See, in particular, judgment of 14 July 2016, Granarolo (C‑196/15, EU:C:2016:559, paragraph 18), and judgment in Feniks (paragraph 37).
35      Judgments in Handte (paragraph 14); of 27 October 1998, Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraph 16), and of 5 February 2004, Frahuil (C‑265/02, EU:C:2004:77, paragraph 23).
36      See, in that regard, judgment in Peters Bauunternehmung (paragraph 13): ‘… it appears that membership of an association creates between the members close links of the same kind as those which are created between the parties to a contract and that consequently the obligations to which the national court refers may be regarded as contractual for the purpose of the application of Article 5(1) of the [c]onvention.’ Emphasis added. See, in that regard, points 52 to 55 of this Opinion.
37      Paragraph 15 of that judgment.  The case that gave rise to that concerned an action brought by the sub-buyer of goods bought from an intermediate seller against the manufacturer and seeking compensation for damage incurred because the goods were not in conformity. The case therefore involved a chain of international contracts for goods in which the contractual obligations of the parties varied from contract to contract (paragraph 17 thereof).
38      See recital 11 of Regulation No 44/2001.
39      Judgment in Handte (paragraph 21).
40      The Court stated that ‘the objective of strengthening legal protection of persons established in the Community, which is one of the objectives which the [Brussels] Convention is designed to achieve, also requires that the jurisdictional rules which derogate from the general principle of the Convention should be interpreted in such a way as to enable a normally well-informed defendant reasonably to predict before which courts, other than those of the State in which he is domiciled, he may be sued. However, … the application of the special jurisdictional rule … to an action brought by a sub-buyer of goods against the manufacturer is not foreseeable by the latter and is therefore incompatible with the principle of legal certainty’ (judgment in Handte, paragraphs 18 and 19). Emphasis added.
41      See, in particular, in that regard, judgments of 27 October 1998, Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraphs 34 and 36), and of 17 September 2002, Tacconi (C‑334/00, EU:C:2002:499, paragraph 20) of which refers to paragraphs 25 and 26 of the judgment of 19 February 2002, Besix (C‑256/00, EU:C:2002:99), which concern the objective of foreseeability but do not mention paragraph 27, relating to the objective of proximity and of the good administration of justice.
42      See, in particular, judgments of 27 October 1998, Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraph 17); of 17 September 2002, Tacconi (C‑334/00, EU:C:2002:499, paragraph 23); and of 5 February 2004, Frahuil (C‑265/02, EU:C:2004:77, paragraph 24). See also Opinion of Advocate General Cosmas in Réunion européenne and Others (C‑51/97, EU:C:1998:45, point 24).
43      See, in particular, Gaudemet-Tallon, H., op. cit., pp. 161 and 170.
44      See, in that regard, Mankowski, P., in Brussels Ibis Regulation – Commentary, Magnus, U., and Mankowski, P. (eds.), Otto Schmidt, Cologne, 2016, p. 155, paragraph 26.
45      See, in particular, the case-law cited in footnote 20 of this Opinion.
46      See, in particular, judgment of 27 October 1998, Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraph 16).
47      Lehmann, M., ‘Special jurisdiction’, The Brussels I Regulation Recast, Dickinson, A. and Lein, E. (eds.), Oxford University Press, 2015, p. 140, paragraph 4.25.
48      See Mankowski, P., in Brussels Ibis Regulation – Commentary, op. cit., p. 155, and in particular paragraph 26.
49      Paragraph 11. Emphasis added.
50      Paragraph 15 of that judgment.
51      See, recently, Pretelli, I., ‘La bonne foi dans la pondération de la proximité et la fonction résiduelle du for spécial en matters relating to a contract dans le règlement Bruxelles I’, Revue critique de droit international privé, No. 1 Dalloz 2020, pp. 80 to 82: ‘The significance attached to proximity by comparison with absolute legal certainty … is revealed by the fact that, in the Brussels I scheme, the court of the defendant’s place of domicile and the special courts are on an equal footing and together aim to ensure the sound administration of justice on the European territory. … The closest court is the one which may be supposed to render the best justice. This enhanced intelligibility of litigation forms the axiological foundation of jurisdiction of proximity.’
52      See, in particular, Mankowski, P., in Brussels Ibis Regulation – Commentary, op. cit., p. 164, paragraph 43. See also my Opinion in Kolassa (C‑375/13, EU:C:2014:2135, point 49).
53      See point 52 et seq. of this Opinion.
54      See in particular, by analogy, Opinion of Advocate General Jacobs in Gabriel (C‑96/00, EU:C:2001:690, points 44 to 47): ‘a legislative exception, like any other legislative provision, should be given its proper meaning, determined in the light of its purpose and wording and the scheme and object of the instrument of which it forms part.’
55      For an argument in favour of a flexible interpretation of the concept of ‘contractual obligation’, see Opinion of Advocate General Saugmandsgaard Øe in Wikingerhof (C‑59/19, EU:C:2020:688, point 38): ‘It is therefore permissible, in my eyes, to interpret the category consisting in “matters relating to a contract” in such a way as to include institutions closely resembling contracts, in the interest of the smooth administration of international litigation’. See also Minois, M., Recherche sur la qualification en droit international privé des obligations, LGDJ, Paris, 2020, pp. 174 to 180.
56      See, to that effect, Pretelli, I., op. cit., pp. 80 to 82.
57      I shall return to that aspect later in my analysis, in order to determine the relevant approach to interpretation to attain that balance between the various objectives of Regulation No 44/2001. See points 73 and 74 of this Opinion. In that regard, the literature has recently considered that the lack of a hierarchy between the different objectives of Regulation No 1215/2012 means that neither interpretation can take priority over the other. It follows that each interpretation, restrictive or broad, of the concept of ‘matters relating to a contract’ can refute the other interpretation’s viewpoint in a dialectical way. See, in that regard, Poesen, M., ‘From Mirages to Aspirations – The Periphery of “Matters Relating to a Contract” in Regulation (EU) No 1215/2012’, Yearbook of Private International Law, Vol. XXII, Otto Schmidt, 2021, pp. 511 to 545, in particular p. 518 and the literature cited in footnotes 34 and 35.
58      See, in particular, judgments in Handte (paragraph 10); of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 27); and in Feniks (paragraph 38 and the case-law cited).
59      See, by analogy, in particular, judgment of 16 July 2009, Zuid-Chemie (C‑189/08, EU:C:2009:475, paragraph 31). See, in that regard, Lehmann, M., ‘Special Jurisdiction’, The Brussels I Regulation Recast, op. cit., p. 140, paragraph 4.25, and Mankowski, P., Brussels I bis Regulation – Commentary, op. cit., p. 156, paragraph 27.
60      Judgment of 4 March 1982, Effer (38/81, EU:C:1982:79, paragraphs 7 and 8).
61      See Opinion of Advocate General Jacobs in Engler (C‑27/02, EU:C:2004:414, point 38).
62      Judgment in Peters Bauunternehmung (paragraph 13). See also point 58 of this Opinion. As regards the relationship between the shareholders of a company and those between the shareholders and the company which they form, see, in particular, judgment of 10 March 1992, Powell Duffryn (C‑214/89, EU:C:1992:115, paragraph 16). As regards the relationship between a company manager and the company which he manages, as provided for in company law, see judgment of 10 September 2015, Holterman Ferho Exploitatie and Others (C‑47/14, EU:C:2015:574, paragraphs 53 and 54). As regards the obligations which co-owners of property assume, in accordance with the law, towards the association of owners, see judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraphs 27 to 29).
63      See Opinion of Advocate General Jacobs in Engler (C‑27/02, EU:C:2004:414, point 38).
64      Judgment of 17 September 2002 (C‑334/00, EU:C:2002:499, paragraph 22). It will be recalled that the case that gave rise to that judgment concerned an action in which the plaintiff sought to rely on the defendant’s pre-contractual liability. The Court therefore held that the action did not come within ‘matters relating to a contract’.
65      Emphasis added.
66      Judgment of 17 September 2002, Tacconi (C‑334/00, EU:C:2002:499, paragraph 22). In the same vein, in the judgment of 5 February 2004, Frahuil (C‑265/02, EU:C:2004:77, paragraph 26), confirmed, in a more nuanced fashion, the absence of a requirement for a contract between the parties. Thus, it held that ‘“matters relating to a contract” do not cover the obligation which a guarantor who paid customs duties under a guarantee obtained by the forwarding agent seeks to enforce in legal proceedings by way of subrogation to the rights of the customs authorities and by way of recourse against the owner of the goods, if the latter, who was not a party to the contract of guarantee, did not authorise the conclusion of that contract’ (emphasis added). As observed in the literature, if the owner had authorised the conclusion of the contract of guarantee, even though he was not a party to that contract, the action for recourse brought by the guarantor against him would have been covered by the concept of ‘matters relating to a contract’. See Gaudemet-Tallon, H., op. cit., p. 170.
67      Judgment of 20 January 2005 (C‑27/02, EU:C:2005:33; ‘the judgment in Engler’ or ‘judgment in Engler’,
paragraphs 45 and 50). The case that gave rise to that judgment concerned a prize notification given by a business person to a consumer.
68      See also, in that regard, judgment of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 46).
69      Judgments in Handte (paragraph 15); of 27 October 1998, Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraph 17); of 17 September 2002, Tacconi (C‑334/00, EU:C:2002:499, paragraph 23); and of 5 February 2004, Frahuil (C‑265/02, EU:C:2004:77, paragraph 24).
70      Judgment in Engler (paragraph 48). See also Opinion of Advocate General Jacobs in that case (C‑27/02, EU:C:2004:414, point 38). See also point 56 of this Opinion.
71      Judgment in Engler (paragraph 51) (Emphasis added). See also Opinion of Advocate General Jacobs in that case (C‑27/02, EU:C:2004:414, point 38). See, recently, judgments in Feniks (paragraph 48) and Primera Air Scandinavia (paragraph 44).
72      See, in particular, judgments of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 39); in flightright (paragraph 60); in Feniks (paragraph 39); and in Wikingerhof (paragraph 23).
73      The legal obligations covered by that first condition, as defined in the Court’s case-law, were described succinctly by Advocate General Saugmandsgaard Øe in his Opinion in Wikingerhof (C‑59/19, EU:C:2020:688, paragraph 37).
74      Paragraph 30 of that judgment. The case that gave rise to that judgment concerned a recourse claim between jointly and severally liable debtors under a credit agreement.
75      As regards an action for damages in a case of breach of a contract conferring an exclusive concession, see judgment of 6 October 1976, De Bloos (14/76, EU:C:1976:134, paragraphs 16 and 17). Concerning a dispute relating to the wrongful repudiation of an independent commercial agency agreement and to payment of commission due under that agreement, see judgment of 8 March 1988, Arcado (9/87, EU:C:1988:127, paragraph 13).
76      See also judgment in flightright (paragraph 59). In that regard, it should be borne in mind that the Court defines a contract, for the purpose of Article 5(1) of Regulation No 44/2001, as a concordance of intention concluded between two persons. See, in particular, the case-law cited in point 58 of this Opinion. See also judgment of 11 July 2002, Gabriel (C‑96/00, EU:C:2002:436, paragraph 49).
77      Judgment in Engler (paragraph 47). See the case-law cited in footnote 64 of this Opinion.
78      See point 56 et seq. of this Opinion.
79      As regards, in particular, the obligations of the giver of the aval on a promissory note towards the payee of that note, see judgment of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraphs 48 and 49).
80      See judgment of 14 July 2016, Granarolo (C‑196/15, EU:C:2016:559, paragraphs 24 to 27).
81      Paragraph 59 of that judgment. It will be recalled that the case that gave rise to that judgment concerned a claim by air passengers for compensation for the long delay of a flight with a connecting flight against an operating air carrier with which the passengers concerned did not have contractual relations. See also Opinion of Advocate General Bobek in Joined Cases flightright and Others (C‑274/16, C‑447/16 and C448/16, EU:C:2017:787, point 54).
82      See, in particular, judgment in Feniks (paragraph 44). See also judgment of 14 December 1977, de Bloos (59/77, EU:C:1977:207, paragraphs 11, 13, 15 and operative part).
83      Opinion of Advocate General Saugmandsgaard Øe in Wikingerhof (C‑59/19, EU:C:2020:688, point 40). Emphasis added. See Article 12 of Regulation No 593/2008.
84      Opinion of Advocate General Saugmandsgaard Øe in Wikingerhof (C‑59/19, EU:C:2020:688, footnote 52).
85      See footnote 21 of this Opinion.
86      See the case-law cited in point 48 et seq. of this Opinion.
87      See the case-law cited in points 48 and 50 of this Opinion. That said, in certain judgments the desire to ensure the balance between the various objectives of Regulation No 44/2001 seems to inspire the interpretation of that concept. See, in that regard, judgment of 19 February 2002, Besix (C‑256/00, EU:C:2002:99, paragraphs 26, 27 and 31 and the case-law cited).
88      Paragraphs 48 and 51 of that judgment.
89      Paragraphs 31 and 33 of that judgment.
90      Paragraphs 59 and 61 of that judgment.
91      See judgments in Feniks (paragraphs 39 and 48) and in Primera Air Scandinavia (paragraph 44).
92      See, in that regard, Haftel, B., ‘Revirement et extension du champ de la “matière contractuel” dans les relations à trois personnes’, Revue des contrats, vol. 5, No 115, 2019, p. 85: ‘After two decisions, any personalistic criterion seems to have completely disappeared.’
93      Paragraph 15 of that judgment.
94      Judgment in Engler (paragraphs 45 and 50). See also point 58 of this Opinion.
95      See the judgment in Peters Bauunternehmung (paragraph 13).
96      In the context of the interpretation of Article 7(1) of Regulation No 1215/2012, see the judgments in Kareda (paragraph 44); flightright (paragraphs 74 and 75); and Feniks (paragraphs 34, 36, 44 and 47). However, the Court has sometimes referred only to either that first objective (the judgment in Primera Air Scandinavia, paragraphs 62 and 63), or to the second (the judgment in Wikingerhof, paragraphs 28 and 37).
97      See, to that effect, the judgments in Feniks (paragraph 36) and Wikingerhof (paragraph 28). I recall, in that regard, that the applicability of Article 5(1) of Regulation No 44/2001 depends, first, on the applicant’s choice to rely on that rule of special jurisdiction and, second, on the examination, by the court hearing the action, of the specific conditions laid down in those provisions, see the judgment in Wikingerhof (paragraph 29).
98      To my mind, it follows from the Court’s case-law that such a balance seems, at least in a number of judgments, to have played a decisive role in the context of the flexible interpretation towards which the Court has been moving in its case-law. Some writers consider, however, that the Court does not clearly state the reasons that lead it to choose one interpretation rather than the other. See, in particular, Poesen, M., op. cit., p. 523 and the literature cited in footnote 64: ‘It has proved impossible to explain why [the Court] prefers one interpretation to the other.’
99      See, to that effect, in particular, judgment of 19 February 2002, Besix (C‑256/00, EU:C:2002:99, paragraph 27 and the case-law cited).
100      See, to that effect, in particular, judgment of 19 February 2002, Besix (C‑256/00, EU:C:2002:99, paragraph 31 and the case-law cited). See also judgments of 14 July 2016, Granarolo (C‑196/15, EU:C:2016:559, paragraph 16), and in Feniks (paragraph 34). See, in that regard, Pretelli, I., loc. cit., pp. 61 to 82.
101      See, to that effect, in particular, judgment of 19 February 2002, Besix (C‑256/00, EU:C:2002:99, paragraph 26 and the case-law cited).
102      See, in that regard, Poesen, M., ‘Regressing into the right direction: Non-contractual Claims in Proceedings between Contracting Parties under Article 7 of the Brussels Ia Regulation’, Maastricht Journal of European and Comparative Law, vol. 28, No 3, 2021, pp. 390 to 398, and in particular pp. 394 to 395.
103      See judgments of 3 July 1997, Benincasa (C‑269/95, EU:C:1997:337, paragraph 27), and of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 61).
104      See judgments of 4 March 1982, Effer (38/81, EU:C:1982:79, paragraphs 7 and 8), and of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 61); see also my Opinion in that case (C‑375/13, EU:C:2014:2135, point 74). See also point 56 of this Opinion.
105      See, by analogy, judgment of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 62).
106      Judgments of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraphs 64 and 65), and of 16 June 2016, Universal Music International Holding (C‑12/15, EU:C:2016:449, paragraphs 45 and 46).
107      Whether as an individual or as a gallery owner.
108      See my Opinion in Ellmes Property Services (C‑433/19, EU:C:2020:482, point 74).
109      See, in that regard, judgment of 25 February 2010, Car Trim (C‑381/08, EU:C:2010:90, paragraphs 54 to 60).
110      See, in that regard, judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 39 and the case-law cited).
111      See judgment of 23 April 2009, Falco Privatstiftung and Rabitsch (C‑533/07, EU:C:2009:257, paragraph 54), according to which ‘it is apparent from the legislative history of Regulation No 44/2001, and from the structure of Article 5(1), that it was only in relation to contracts for the sale of goods and the provision of services that the [EU] legislature intended, first, no longer to refer to the contested obligation, but to determine the characteristic obligation of those contracts and, secondly, to define, independently, the place of performance as a connecting factor to the competent court in matters relating to a contract.’ Emphasis added.
112      In particular if it proves difficult or impossible for the referring court to determine the place of delivery of the works of art or that of the provision of services by the gallery in the context of the first contract entered into. I recall, first, that the Court has already held that ‘the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction’ (judgment of 25 February 2010, Car Trim,
C‑381/08, EU:C:2010:90, paragraph 62 and operative part; emphasis added). Second, the concept of ‘services’ implies, according to settled case-law, that the party providing the services performs a specific activity in consideration of remuneration: the element relating to remuneration must not be absent if the second indent of Article 5(1)(b) of Regulation No 44/2001 is to be applicable. That said, I admit to having doubts as to whether the dispute in the main proceedings concerns the sale of goods or the provision of services.
113      Judgment of 6 October 1976 (12/76, EU:C:1976:133).
114      Judgment of 23 April 2009, Falco Privatstiftung and Rabitsch (C‑533/07, EU:C:2009:257, paragraphs 46 to 57).