61979C0814
OPINION OF MR ADVOCATE GENERAL WARNER
DELIVERED ON 8 OCTOBER 1980
Contents
Introductory
Question (a)
Question (b)
Question (c)
Question (d)
Question (e)
My Lords,
Introductory
This case comes to the Court by way of a reference for a preliminary ruling ordered by the Hoge Raad of the Netherlands under the Protocol of 3 June 1971 on the interpretation by the Court of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. As Your Lordships know, that Convention is at present in force only as between the original Member States, and the only authentic texts of it are the German, French, Italian and Dutch texts. Your Lordships also know, however, that a Convention on the Accession of the new Member States to the 1968 Convention and to the 1971 Protocol was signed on 9 October 1978 and is at present in the process of being ratified. I shall call this “the Accession Convention”. Annexed to it are versions of the 1968 Convention and 1971 Protocol in Danish, English and Irish, and it provides (by Article 37) that those versions are to be authentic under the same conditions as the original texts of the 1968 Convention and 1971 Protocol. That being so, I propose to cite, as and where appropriate, from what are to become, when the process of ratification has been completed, the authentic Danish, English and Irish texts.
The appellant in the proceedings before the Hoge Raad is the State of the Netherlands, which I shall call for short “the State”. The respondent is described in the order for reference as “Reinhold Ruffler”, but it has been indicated to us on his behalf that his surname is actually “Riiffer”. He is a German citizen, “domiciled” (within the meaning of that term in the 1968 Convention) in the Federal Republic of Germany. He was the owner and skipper of a German barge, the Otrate, which, on the night of26 October 1971, as the result of a collision with a Dutch ship called the Vechtborg, sank in the Bight of Watum in the Ems Estuary, and became a wreck. The State alleges that the collision was due, wholly or in part, to the negligent navigation of the Otrate, albeit that the person at her helm at the time was a local pilot.
The root of the problems to which the case gives rise lies in the surprising fact that the frontier between the Netherlands and the Federal Republic of Germany in the Ems Estuary is disputed. The Bight of Watum is within an area over which both States claim sovereignty. Since this Court is not called upon to resolve that dispute, I need not trouble Your Lordships with the origins and details of it, interesting though they be.
By a treaty between the Netherlands and the Federal Republic signed at the Hague on 8 April 1960 (the “Ems-Dollard Treaty”), which was supplemented by later instruments the provisions of which are not material for present purposes, arrangements were made between the two States for cooperation in the Ems Estuary without prejudice to their respective territorial claims. The relevant provisions of the Ems-Dollard Treaty may be summarized as follows:
Article 16 provides that “each Contracting Party shall bear the costs of those works and measures which it is entitled or required to carry out or to take under the terms of this Treaty”.
Article 19 defines the areas in which each Contracting Party is to be responsible for what the Treaty calls “river-police functions”. The Netherlands are to be responsible for them in the Bight of Watum. Article 20 defines “river-police functions” as including among other things “measures for the location, marking and removal of wrecks”. Article 21 provides that “in carrying out river-police functions, each Contracting Party shall apply its own laws and regulations”.
Article 32 prescribes rules to be applied “where the applicability of any legal provision depends upon the question within which territory a vessel is situated or through which territory its course lies”. In such a case, “save as otherwise provided in... international treaties to which both Contracting Parties are parties... German vessels shall be deemed to be within the territory of the Federal Republic, and Netherlands vessels shall be deemed to be within the territory of the Kingdom of the Netherlands”. The situation of a vessel of a third country is to be ascertained by reference to the situation of its port of destination or of departure within the Estuary. Article 33 provides that “Article 32 shall apply mutatis mutandis with respect to the jurisdiction of the police authorities, the prosecuting authorities and the courts”.
Article 46 (1) states: “The provisions of this Treaty shall not affect the question of the course of the international frontier in the Ems Estuary. Each Contracting Party reserves its legal position in this respect”. Article 46 (2) enables either Contracting Party to refer that question to the International Court of Justice or to arbitration, but it does not appear that either of them has done so.
Thus, under Articles 19 to 21 of the Treaty, it fell to the competent Dutch authority, i. e. the State in the shape of the “Ministerie van Verkeer en Waterstaat” (Ministry of Transpon and Water Management), to deal with the wreck of the Otrate in accordance with the relevant Dutch legislation, which was the “Wrakkenwet” (Statute on Wrecks) of 19 June 1934. Under powers conferred by that Statute, in particular Article 6, the Ministry caused the remains of the vessel and its cargo to be raised and taken to the Port of Delfzijl, where they were sold by the Burgemeester. The cost of their removal amounted to 113994.55 guilders and the net proceeds of their sale to 6530.37 guilders. The balance of 107564.18 guilders was claimed by the State from Mr Rüffer under Article 10 of the Wrakkenwet, which provides:
“Costs incurred pursuant to this statute shall, in so far as they have not been repaid by the persons concerned, or cannot be covered by the proceeds of the articles sold pursuant to Article 6, be borne by the authority, subject always to its power, pursuant to this article, to recover costs incurred by it from persons who, pursuant to the law, are liable therefor”.
From what is stated by the Hoge Raad in the order for reference and further explained by the State in its observations to this Court, it appears that the liability referred to in the last part of Article 10 is liability under the general law, in this instance, according to the State's claim, liability under the combined effect of Article 780 of the “Wetboek van Koophandel” (the Dutch Commercial Code), which imposes on the owner of a ship vicarious liability for damage caused by the wrongful acts of those employed on the ship, whether permanently or temporarily, in the course of their employment, and Articles 1401 and 1403 of the “Burgerlijk Wetboek” (the Dutch Civil Code) which relate to torts. At all events the Hoge Raad expressly states that the State's claim against Mr Rüffer is to be classified in Dutch law as a claim in tort (“als verbintenis uit onrechtmatige daad”).
Mr Rüffer having denied liability, the State brought an action against him in the Arrondissementsrechtbank of The Hague to enforce its claim. By interlocutory application, objection was taken on behalf of Mr Rüffer to the jurisdiction of that Court. By a judgment dated 20 February 1976 the Arrondissementsrechtsbank declared that it had no jurisdiction to hear the action. The State appealed to the Gerechtshof of The Hague, which by a judgment dated 16 March 1978 upheld the judgment of the Arrondissementsrechtbank. I need not, I think, trouble Your Lordships with the details of the contentions put forward on behalf of the parties before those courts or with the reasons given by the latter for deciding as they did.
The State now appeals to the Hoge Raad. Before that Court it rests its case entirely on Article 5 (3) of the 1968 Convention. That provision is as follows:
“A person domiciled in a Contracting Sute may, in another Contracting State, be sued:
...
(3)
in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred;
...”
Before the Hoge Raad the State put its case in four ways. First it contended that, since in the view of the Dutch Government the Bight of Watum forms part of Dutch territory, a Dutch court ought to hold that the place where the Otrate sank and from which its wreck was removed, if that was to be regarded as “the place where the harmful event occurred” within the meaning of Article 5 (3), was a place within Dutch territory. Alternatively it contended that, in a case such as this where the State of the Netherlands, pursuant to Articles 19 to 21 of the Ems-Dollard Treaty and to the Dutch Wrakkenwet, has removed a wreck from a part of the Ems Estuary in respect of which the Netherlands are, under the Ems-Dollard Treaty, responsible for river-police functions, a reasonable and proper (“redelijke en doelmatige”) interpretation of Article 5 (3) requires that, for the purposes of that provision, the place from which the wreck was removed should be regarded as being within Dutch territory. In the further alternative the State contended that the collision between the Otrate and the Vechtborg was part of the “harmful event” within the meaning of Article 5 (3) and that, whilst the Otrate, being a German vessel, might be deemed by virtue of Article 32 of the Ems-Dollard Treaty to be within German territory, the Vechtborg, a Dutch vessel, was by the same token deemed to be within Dutch territory, so that the “harmful event” occurred also in Dutch territory. Lastly the State contended that “the place where the harmful event occurred” within the meaning of Article 5 (3) was not the place where the Otrate sank, but the place where the State suffered damage, consisting in the cost of removing the wreck in so far as that could not be recovered from the proceeds of sale of the wreck and of its cargo; and that that place was either The Hague, where the State had its seat of government, or Delfzijl, where it transpired that the proceeds of the sale would be insufficient to cover the cost of removing the wreck.
The essence of Mr Riiffer's case is that Article 5 (3) does not apply and that he can be sued only before a German court. He relies primarily (so far as relevant for present purposes) on Articles 32 and 33 of the Ems-Dollard Treaty and on Article 57 of the 1968 Convention, which provides :
“This Convention shall not affect any conventions to which the Contracting States are or will be parties and which, in relation to particular matters, govern jurisdiction and the recognition and enforcement of judgments”.
Mr Rüffer contends that the Ems-Dollard Treaty, and in particular Articles 33 and 22 thereof, is a convention which governs jurisdiction “in relation to particular matters”, so that, by virtue of Article 57, the application of the 1968 Convention is excluded. He contends, as I understand it, in the alternative, that, by virtue of Article 32, the “harmful event”, the sinking of the Otrate, is deemed to have occurred in Germany, so that Article 5 (3) cannot confer jurisdiction on the Dutch courts.
Such are the circumstances in which the Hoge Raad has referred to this Court five questions, which are lettered (a) to (e).
Question (a)
Question (a) is:
“ Does the concept ‘civil and commercial matters’ referred to in Article 1 of the Convention include a claim such as that brought by the State against Rüffer?”
All those on whose behalf observations were submitted to the Court (namely, the State, Mr Rüffer, the United Kingdom, Government, and the Commission) agreed that that question should be answered in the affirmative. In the written observations lodged on behalf of Mr Rüffer it was said that, in the circumstances, this Court need not answer the question, but at the hearing Counsel for Mr Rüffer, whilst maintaining that it was irrelevant because of Article 57, expressed his agreement with the view that the matter was a “civil” one. The United Kingdom Government, whilst concurring in that view, said that it wished to submit observations only on question (b); it did not develop any argument on question (a). Thus only the State and the Commission put forward arguments on question (a).
The argument of the State was, in a nutshell, that the administration of a waterway need not be vested in a public authority. There were formerly in the Netherlands canals that were owned and managed by private companies.
Moreover, the claim in question was a claim in tort, typically a “civil” matter. In putting it forward the State was not therefore acting as a public authority exercising its powers as such, so as to bring the case within the principle laid down by this Court in Case 28/76 LTU v Eurocontrol [1976] 2 ECR 1541.
The argument of the Commission was slightly different in that the Commission accepted that, in removing a wreck from a public waterway, a public authority was exercising public powers in the sense meant by the Court in LTU v Eurocontrol. It did not, however, follow, the Commission submitted, that an action based on Article 10 of the Wrakkenwet was an action brought in the exercise of public powers. It was an action in tort, brought to recover from those responsible for the wreck being there the amount of a financial loss occasioned by their wrongdoing. It was analogous to any action brought by the victim of a collision at sea against the person responsible for that collision.
I do not think, for my part, that the answer is as simple as that. One must, in my opinion, bear in mind that the expressions used in Article 1, which defines the scope of the Convention, connote concepts that are “independent” of the law of any particular Member State and which “must be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems” — see LTU w Eurocontrol, Cases 9 and 10/77 Bavaria Fluggesellschaft and Germanair v Eurocontrol [1977] 2 ECR 1517 and Case 133/78 Gourdain v Nodier [1979] ECR 733. As the Court explained in each of those cases that approach “is necessary in order to ensure, as far as possible, that the rights and obligations which derive from [the Convention] for the Contracting States and the persons to whom it applies are equal and uniform”. In LTU v Eurocontrol the Court went on to say that “if the interpretation of the concept [‘civil and commercial matters’] is approached in this way ... certain types of judicial decision must be regarded as excluded from the area of application of the Convention, either by reason of the legal relationships between the parties to the action or of the subject-matter of the action”. It was on that footing that the Court there held that “although certain judgments given in actions between a public authority and a person governed by private law may fall within the area of application of the Convention, this is not so where the public authority acts in the exercise of its powers as such”. (The English translation of the judgment in. the ECR does not have the words “as such”, but I think they must be added to render the full meaning of the original, which has “hoheitliche Befugnisse”).
Thus, in order to decide whether an action of the kind brought by the State against Mr Rüffer is within the scope of the Convention, it is not enough to look at its classification in Dutch law. It is necessary to consider the legal systems of all the Member States to see whether there can be regarded as stemming from them a general principle according to which such an action is to be regarded as a “civil” or “commercial” matter.
An examination of the laws of the original Member States evinces that, among them, Dutch law is unique in affording to a harbour or waterway authority an action of that kind in tort.
In Belgium the matter is governed by Articles 49, 102 and 109(4) of an “Arrêté Royal” dated 15 October 1935 laying down a “Règlement general des voies navigables di Royaume”, read with Articles 220, 221 and 224 of the “Code des droits d'enregistrement, d'hypothèque et de greffe”. Shortly stated the effect of those provisions is to empower the “Office de la Navigation”, where a wreck has not been removed by its owner, to remove it and to claim the cost of doing so from the owner. If he fails to pay, the amount is recovered from him by the “Administration de l'Enregistrement et des Domaines” through the issue of a “contrainte” the execution of which the owner can only stop by himself taking proceedings before the appropriate court. The procedure is thus typically administrative. There is, it appears, no right for any public authority, if the use of that procedure fails to produce full reimbursement, to sue the owner or anyone else in tort.
In Germany there are two relevant instruments, one of 18 May 1874, the “Strandungsordnung” (Wrecks Order) and one of 2 April 1968, the “Bundeswasserstraßengesetz” (Statute on Federal Waterways). Particularly in point are paragraphs 25 et seq. of the former (as amended) and paragraphs 24 (1), 25, 28 and 30 of the latter. Between them they envisage two possibilities :
(i)
The competent authority may, by an administrative act, which is susceptible of challenge in the administrative courts (“Verwaltungsgerichte”), enjoin upon the owner of the wreck, or upon any other person whom it considers responsible for its presence, to remove it at his own expense. If he fails to do so within the time prescribed, the authority may itself remove the wreck and charge him with the cost of doing so, again by an administrative act susceptible of challenge in the administrative courts.
(ii)
In a case of urgency, the authority may itself remove the wreck without notice to the owner or to anyone else. It then acquires a charge over the wreck for the cost of removal. That charge is enforceable by an administrative process for the recovery of debt known as “Verwaltungszwangsverfahren”. If the cost exceeds the value of the wreck, the excess is irrecoverable (see the Judgment of the Bundesverwaltungsgericht dated 22 August 1975 cited in “Die öffentliche Verwaltung”, 1976, p. 100).
There again, therefore, the whole matter is administrative, though it was not always so. Until the enactment of the Statute of 1968, there were circumstances in which an action similar to that in question here could be brought under the provisions of the “Bürgerliches Gesetzbuch” (the German Civil Code) relating to “Geschäftsführung ohne Auftrag”(negotiorum gestio), not tort.
In France the law as respects maritime wrecks is to be found in a Statute of 24 November 1961 relating to “la police des épaves maritimes” and in two instruments implementing it, a “Décret” of 26 December 1961 and an “Arrêté” of 4 February 1965. As respects wrecks in inland waterways it is to be found in the “Règlement general de police de la navigation intérieure”, promulgated by a “Décret” of 21 September 1973. The gist of it is that, failing removal of a wreck by the owner, the competent authority may itself cause it to be removed and issue a “titre exécutoire” entitling the authority to recover from the owner any excess of the cost over the proceeds of the wreck. It is up to the owner to challenge that “titre exécutoire”, if he wishes to, in the administrative courts. There is, it appears, no possibility for the competent authority to sue the owner or anyone else in the ordinary courts.
In Italy the “Codice della Navigazione” (Maritime Code) enacted by a “Decreto Reale” (Royal Decree) No 327 of 30 March 1942 empowers a competent authority, failing removal of a wreck by its owner or in a case of urgency, to remove the wreck. In such a case the property in the wreck passes to the authority. If the cost of removal exceeds the proceeds of sale of the wreck and the wrecked vessel was of more than 300 tonnes, the authority is entitled, under Articles 73 and 84 of the Codice, to issue an “ingiunzione” (an order) requiring the owner (but no-one else) to pay the difference. That “ingiunzione” becomes executory upon receiving by “decreto” the fiat of the Pretore. There appears to have been some controversy among Italian lawyers as to whether the need for the Pretore's fiat converts what starts as an administrative act into a judicial one, but the better view appears to be that it does not, in particular because once the “ingiunzione” has become executory, it is left to the owner to challenge it, if he thinks fit, before the appropriate court, which need not be the Pretore's. There is no possibility, it appears, for the competent authority to take ordinary civil proceedings against anyone, in tort or otherwise, even where the vessel was of less than 300 tonnes or where the owner has insufficient means to pay for the cost of its removal.
In Luxembourg the problem can arise only, of course, as regards the Moselle. The only legislation about it is the “Règlement de police pour la navigation de la Moselle” promulgated by an “Arrêté Grand-Ducal” of 18 June 1971. That imposes on the skipper of a wrecked vessel the obligation to remove the wreck, but empowers the competent authority to remove it where its removal is urgent. The cost to the authority of so doing is recoverable from the owner of the wreck or, where the wreck is the result of a collision, from the owner of the vessel considered by the authority to have been responsible for the collision. The authority has, however, no power to sell the wreck or to issue a “titre exécutoire”. Should it need to enforce its rights it must take proceedings in the appropriate court. It seems that in practice that need does not arise because all vessels navigating the Moselle are insured. So the law is little developed.
The question is whether, if that be a correct summary of the laws of the original Member States, there can be attributed to the authors of the 1968 Convention an intention that the phrase “civil and commercial matters” in Article 1 of that Convention should comprise an action of the present kind. I find it impossible to answer that question in the affirmative. This is an action by a public authority against a private person arising out of what is considered, in the laws of all the original Member States except possibly the Netherlands, to have been an exercise by that authority of its powers as such. It is, moreover, an action of a kind virtually unknown in the laws of any of the original Member States other than the Netherlands. That being so, the only real ground on which one could hold it to be a “civil” or “commercial” matter would be that it was considered to be such in Dutch law. But that would be incompatible, so it seems to me, with the principles laid down by the Court in LTV v Eurocontrol, and incompatible also with the concept of reciprocity which is enshrined in the preamble to the Convention.
I doubt if, on such a question, the laws of the new Member States or the provisions of the Accession Convention can be relevant, but I will, for the sake of completeness, advert to them briefly.
Danish law appears to be in line with the laws of the majority of the original Member States. The laws of Ireland and of the United Kingdom, on the other hand are broadly in line with Dutch law; they enable a harbour or waterway authority, independently of statutory powers, to sue in tort, for the cost of removing a wreck, a person whose negligent navigation — or the negligent navigation of anyone for whose acts he is vicariously liable — is responsible for the wreck having got there (see as regards Irish law The Edith (1883) 11 L.R. Ir. 270, as regards English law The Elh [1915] p. Ill and Dee Conservancy Board v McConnell [1928] 2 K.B. 159 and as regards Scots law per Lord Murray in Clyde Navigation Trustees v Kelvin Shipping Co [1927] S.C. at p. 626).
The Accession Convention “adjusts” Article 1 of the 1968 Convention by adding to the first paragraph a sentence providing that the Convention “shall not extend, in particular, to revenue, customs or administrative matters”. In his report on the draft of that Convention, Professor Dr Peter Schlosser, the rapporteur of the working party responsible for preparing the draft, has this to say about the factual background against which that adjustment was proposed (Official Journal C 59 of 5 March 1979 at p. 82):
“The distinction between civil and commercial matters on the one hand and matters of public law on the other is well recognized in the legal systems of the original Member States and is, in spite of some important differences, on the whole arrived at on the basis of similar criteria. Thus the term ‘civil law’ also includes certain important special subjects which are not public law, especially, for example, parts of labour law. For this reason the draftsmen of the original text of the 1968 Convention, and the Jenard Report, did not include a definition of civil and commercial matters and merely stated that the 1968 Convention also applies to decisions of criminal and administrative courts, provided they are given in a civil or commercial matter, which occasionally happens. In this last respect, the accession of the three new Member States presents no additional problems. But as regards the main distinction referred to earlier considerable difficulties arise.
In the United Kingdom and Ireland the distinction commonly made in the original EEC States between private law and public law is hardly known. This meant that the problems of adjustment could not be solved simply by a reference to these classifications. In view of the Judgment of the Court of Justice of the European Communities of 14 October 1976 [i.e. the judgment in LTV v Eurocontrol], which was delivered during the final stages of the discussions and which decided in favour of an interpretation which made no reference to the ‘applicable’ national law, the Working Party restricted itself to declaring, in Article 1, paragraph 1, that revenue, customs or administrative matters are not civil or commercial matters within the meaning of the Convention”.
I see nothing in all that to disturb the conclusion that I reached from a consideration of the “unadjusted” terms of the 1968 Convention and of the laws of the original Member States.
In the result I would, in answer to Question (a), say that a claim of the kind referred to in that question is not within the concept of “civil and commercial matters” referred to in Article 1 of the 1968 Convention.
If that is right the Hoge Raad's subsequent questions do not call for any answer. Lest, however, Your Lordships should differ from me on Question (a), I must deal with them.
Question (b)
Question (b), which the Hoge Raad asks only in case Question (a) should be answered in the affirmative, is whether a claim of the present kind is within the concept of “matters relating to tort, delict or quasi-delict” referred to in Article 5 (3) of the Convention.
The arguments of the State and of Mr Rüffer on that question were scant. The State confined itself to saying, if I understood it rightly, that the answer must be in the affirmative because it was so in Dutch law. On Mr Riiffer's behalf it was submitted, first, that the question was irrelevant because the Otrate had in fact complied with the relevant rules of navigation so that he was not liable for any tort, secondly that the question was irrelevant because of Article 57 and of the provisions of the Ems-Dollard Treaty, but thirdly that, if and in so far as the question was relevant, the answer to it must clearly be that the claim was in tort.
The United Kingdom Government, founding on the judgment of the Court in Case 12/76 Tessili v Dunlop [1976] 2 ECR 1473, submitted that one must first consider whether the phrase “matters relating to tort, delict or quasi-delict” in Article 5 (3) should (in the words of paragraph 10 of that judgment) be interpreted as having its “own independent meaning and as being thus common to all the Member States or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought”; and the United Kingdom Government submittetd that the latter was the correct interpretation. Indeed, in flat contradiction of what the Court said in Case 33/78 Soma/er v Saar-Femgas [1978] ECR 2183 (paragraphs 5 to 8 of the judgment), the United Kingdom Government went so far as to submit that “such a determination in accordance with the lex fori should be adopted for the interpretation of all the special jurisdictions set out in Article 5 of the Convention unless there are special reasons to the contrary”.
I need not, I think, take up Your Lordships' time rehearsing the detailed arguments put forward by the United Kingdom in support of its submission. Your Lordships have read them and they were summarized in the Report for the Hearing. In my opinion some of them are weighty, others less so. For instance, the fact that, unless in interpreting concepts that are found in the Convention a national court applies its own law, inconsistencies will result between the meaning attributed to a term in the Convention and in national law seems to me far less important a consideration than the need, stressed by the Court in the cases that I cited earlier, to ensure as far as possible that the rights and obligations that derive from the Convention for the Member States and the persons to whom it applies are equal and uniform. The authors of the Convention clearly accepted that terms used in it might have there a connotation different from their connotation in national law. For example the English text of the Convention uses the word “domiciled” in a sense manifestly different from its sense in the law of Ireland or of the United Kingdom.
In my opinion, however, there are two clear reasons why the submission of the United Kingdom Government should be rejected.
The first is that it is inconsistent with the principles on which this Court has decided cases since Tessili v Dunlop. It is true that, in Tessili v Dunlop, which was the first case on the Convention ever to be decided by the Court, the Court held that “the place of performance of the obligation in question” in Article 5 (1) of the Convention was to be ascertained by reference to the law governing that obligation according to the rules of conflict of laws of the court before which the matter was brought. It did so because “having regard to the differences obtaining between national laws of contract and to the absence, at this stage of legal development, of any unification in the substantive law applicable, it does not appear possible to give any more substantial guide to the interpretation of” that phrase (paragraph 14 of the judgment). The Court added that that was “all the more true since the determination of the place of performance of obligations depends on the contractual context to which these obligations belong”. The decision in Tessili v Dunlop stands, however, alone and is probably to be explained on the ground of the peculiar complexities that exist in the field of contract. In every subsequent case where the question has arisen whether an expression used in the Convention had an “independent” meaning or was to be interpreted as a reference to national concepts, the Court has either proceeded on the tacit assumption that the former view was correct — as in Case 14/76 De Bloos v Bouyer [1976] 2 ECR 1497 and Case 21/76 Bier v Mines de Potasse d'Alsace, ibid. p. 1735, in each of which, however, the question was discussed by the Advocate General — or has expressly decided in favour of that view — as in LTU v Eurocontrol (already cited), Case 43/77 Industrial Diamond Supplies v Riva [1977] 2 ECR 2175, Case 140/77 Bertrand v Ott [1978] ECR 1431, Somafer v Saar-Ferngas (already cited) and Gourdain v Nodier (already cited). In the later cases the Court has stressed that the dominant consideration is the need for the equal and uniform application of the Convention in all the Member States and also, in relation to Article 5, the need to avoid a proliferation of special jurisdictions which would defeat one of the main purposes of the Convention. In some of the cases (Industrial Diamond Supplies v Riva and Bertrand v Ott) divergencies between national legal concepts have been given as a reason for holding that a term in the Convention must be given an independent meaning. I conclude that such a term is to be interpreted as a reference to national concepts only where to give it an independent meaning is for some reason impossible. Weighty though some of the considerations put forward by the United Kingdom Government are, they do not in my opinion go that far.
The second reason why I would reject the United Kingdom Government's submission — and this is in my opinion decisive — is that to treat the phrase “matters relating to tort, delict or quasi-delict” as a reference to national legal concepts would only be possible if the corresponding phrase in the authentic text of the Convention in the official language or languages of each Member State connoted a concept known to the law of that State. In fact that is not so.
The authentic texts in the languages of the original Member States use the following phrases :
German:“wenn eine unerlaubte Handlung oder eine Handlung, die einer unerlaubten Handlung gleichgestellt ist, oder wenn Ansprüche aus einer solchen Handlung den Gegenstand des Verfahrens bilden”;
French:“en matière dèlictuelle ou quasi-délictuelle”;
Italian:“in materia di delitti o quasi-delitti”;
Dutch:“ten aanzien van verbintenissen uit onrechtmatige daad”.
No difficulty arises over the French or the Dutch. “En matière dèlictuelle ou quasi-délictuelle” is an appropriate phrase to connote the concept of French law corresponding to tort, and also, in French, the corresponding concepts of Belgian and Luxembourg law. Similary “ten aanzien van verbintenissen uit onrechtmatige daad” is appropriate to connote the corresponding concepts of Dutch law and, in Dutch, of Belgian law. In the German text, however, whilst the phrase “eine unerlaubte Handlung” connotes the German concept of tort, the circumlocution “eine Handlung, die einer unerlaubten Handlung gleichgestellt ist” does not, I understand, refer to any concept known to German law. For its part the Italian phrase “in materia di delitti o quasi-delitti”, whilst it is intelligible to an Italian lawyer familiar with Justinian, the Napoleonic Codes and the erstwhile Italian Civil Code, is not appropriate to modern Italian law, in which the term of art is “fatti illeciti”.
Here again I do not think that the laws of the new Member States are relevant, but I will deal with them briefly for the sake of completeness. In the English text “tort” is of course appropriate to English law and to Irish law, whilst “delict or quasi-delict” appears to be appropriate to Scots law. The Irish text has “in ábhair a bhaineann le tort, míghníomh no samhail mhíghnímh” which is, I understand, a direct rendering of the English. The last four words, corresponding to “delict or quasi-delict” do not connote any concept known to Irish law. Lastly the Danish text has “i sager om erstatning uden for kontrakt”, which literally means “in matters concerning compensation unconnected with contract”. As I understand it that phrase, or phrases like it, are used in Denmark only in certain procedural statutes where they are taken to connote a wide and somewhat undefined range of claims arising otherwise than out of contract.
I am thus of the opinion that it is impossible to interpret the phrase “tort, delict or quasi-delict” in Article 5 (3) as referring to national legal concepts and that it must be taken to have an independent meaning.
The Commission, which also takes that view, attempted a definition of that independent concept. As, however, emerges from Professor André Tune's Introduction to Volume XI of the International Encyclopedia of Comparative Law, the volume on “Torts”, no-one has ever succeeded, even in the context of any national legal system, in formulating an accurate definition of tort that did not beg one or more questions. Like the proverbial elephant, tort is easier to recognize than to define.
I do not think it necessary in this case to attempt a definition of the concept of tort for the purposes of the Convention.
I am content to observe that in the three Member States where the subject-matter of an action of the present kind is not considered to belong exclusively to the sphere of public or administrative law (the Netherlands, Ireland and the United Kingdom) it is considered to belong to the province of tort.
For those reasons I would hold that, if such an action is within the scope of the Convention at all, it is within the scope of Article 5 (3).
I turn to the Hoge Raad's Question (c) with which I can deal much more shortly.
Question (c)
That question is:
“What is the effect of Article 5 (3) in a situation where the harmful event occurred in territory that is, according to the Ems-Dollard Treaty, regarded by the Kingdom of the Netherlands as belonging to the Netherlands and by the Federal Republic of Germany as belonging to the Federal Republic of Germany? Does Article 5 (3) mean that for the Dutch courts that place must be regarded as (also) being situated in the Netherlands? Having regard to the nature of the present claim is it in this respect relevant that the place lies in territory in which, pursuant to the Ems-Dollard Treaty, the Kingdom of the Netherlands is responsible for river-police functions and is therefore obliged to remove a wreck lying in the said territory?”
The question is asked of course on the footing that the subject-matter of the present action is within the scope of the Convention and within the scope of Article 5 (3). It is prompted by the first two contentions advanced by the State before the Hoge Raad, to which I have referred.
Underlying the question, however, so it seems to me, is the false assumption that, if in a particular case “the place where the harmful event occurred”, within the meaning of Article 5 (3), lies in territory over which sovereignty is claimed by two Member States, the issue whether that place should for the purposes of that case be taken to lie in the territory of one the other of those States can be resolved as a matter of interpretation of Article 5 (3). In my opinion the 1968 Convention is in no way concerned with resolving issues of that kind. Its provisions are, as the Commission put it, “neutral” with regard to them. The Convention is framed on the basis that the situation of a particular place in the territory of this or that Member State has been or will de determined aliunde. That in my opinion is all that can be said in answer to Question (c), if as a result of Your Lordships' answers to Questions (a) and (b) an answer to Question (c) is called for at all.
Question (d)
Question (d), which is also put on the footing that Questions (a) and (b) are both to be answered in the affirmative, is as follows:
“Can ‘the place where harmful event occurred’ be the place where the damage as alleged by the State occurred, namely either The Hague, where the State has its seat of government, or Delfzijl (in the Arrondissement of Groningen) where the goods salvaged from the wreck were sold by the State revealing to what extent the costs incurred by the State in removing the wreck were not covered?”
That question, manifestly, reflects the fourth contention put forward by the State before the Hoge Raad. That contention is in my opinion ill-founded. The State relied in support of it on the decision of the Court in Bier v Mines de Potasse d'Alsace (already cited). But that authority does not in my opinion justify the contention. It was there held that the expression “the place where the harmful event occurred” in Article 5 (3) was apt to cover both “the place where the damage occurred” and “the place of the event giving rise to it”. But the relevant damage in that case was the harm to the plaintiff company's seed beds in the Netherlands caused by the pollution of the Rhine. The place of the event giving rise to it was Alsace, where the defendant discharged saline waste into the Rhine. It was never suggested there, much less held by the Court, that the place where the harmful event occurred could be the place where the plaintiff company had its seat or the place where the amount of the damage to its business was quantified. As was pointed out to us in argument both on behalf of Mr Rüffer and on behalf of the Commission, to hold here that the place where the State has its seat could be regarded as being “the place where the harmful event occurred” would be tantamount to holding that, under the Convention, a plaintiff in Hon had the option of suing in the courts of his own domicile, which would be quite inconsistent with the scheme of Article 2 et seq. of the Convention. As for the suggestion that the “harmful event” in this case might be regarded as having occurred in Delfzijl, I think it enough to point out that the sale of the wreck by the Burgemeester was not a harmful event but a means of mitigating pro tanto the damage that the State had suffered.
I would therefore answer Question (d), if it be relevant, in the negative.
I turn lastly to Question (e).
Question (e)
That is in these terms:
“If the Ems-Dollard Treaty is to be understood as giving the Dutch courts jurisidction over a claim such as the present one (which question is not referred to the Court of Justice for a preliminary ruling) does Article 57 of the Brussels Convention leave scope for the application of the opening words and paragraph 3 of Article 5 regarding jurisdiction?”
I confess that I am unsure as to what lies behind that question. I doubt if it can be any contention of Mr Riiffer's, since his case is that the Ems-Dollard Treaty confers jurisdiction on the German courts. Possibly it is the State's third contention, to the effect that the Vechtborg's involvement in the collision meant that, under the Ems-Dollard Treaty, the harmful event must be taken to have occurred in Dutch territory as well as in German territory.
At all events, it was contended on behalf of Mr Rüffer that the Ems-Dollard Treaty was a lex specialis governing the respective jurisdictions of the Dutch and German courts in a matter such as this, so that, by virtue of Article 57, any application of the 1968 Convention was precluded. On behalf of the State and of the Commission, on the other hand, it was submitted that that consequence would follow only if the provisions of the Ems-Dollard Treaty as to jurisdiction were intended to be exclusive of the application of any other possible rules on the subject.
I have come to the conclusion that, on that point, the State and the Commission are right. Article 57 forms part of Title VII in the Convention, which is headed “Relationship to other Conventions”. That title opens with Article 55, which list nominatim the conventions concluded between two or more Member States that the 1968 Convention is to “supersede”. Then follows Article 56, which provides that, none the less those conventions are to “continue to have effect in relation to matters to which this Convention does not apply” and also (putting it briefly) in relation to judgments and instruments dated before the entry into force of the Convention. Then Articles 57 and 58 provide that the Convention “shall not affect” certain other conventions. (The corresponding terms in the other texts are: German “läßt... unberührt” in Article 57, berührt... nicht” in Article 58, French “ne déroge pas aux” in Article 57, “ne porte pas préjudice aux” in Article 58, Italian “non deroga alle” in Article 57, “non pregiudicano i” in Artide 58, Dutch “laat onverlet” in Article 57, “maken geen inbreuk” in Article 58. The Danish and Irish texts, like the English, use the same expression in both Articles: “berører ikke” and “Ni dhéanfaidh... seo difear” respectively.) If a convention relating to “particular matters”, within the meaning of Article 57, such as the Ems-Dollard Treaty, prescribes rules as to jurisdiction that are intended to apply to the exclusion of any other rules, its operation will obviously be affected if the rules in the 1968 Convention are held to be applicable in the alternative at the option of the plaintiff. That will not be so, however, if the particular convention envisages that rules other than those that it contains may apply.
I would therefore answer Question (e), if Your Lordships consider it relevant, by saying that the existence of a convention governing jurisdiction in relation to particular matters does not preclude the application, as an alternative, of the rules as to jurisdiction contained in the 1968 Convention, unless the first-mentioned convention is to be interpreted as prescribing rules that are intended to apply to the exclusion of any other possible rules.