OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 19 April 2012 ( 1 )

Case C-133/11

Folien Fischer AG

Fofitec AG

v

Ritrama SpA

(Reference for a preliminary ruling from the Bundesgerichtshof (Germany))

‛Jurisdiction in civil and commercial matters — Interpretation of Article 5(3) of Regulation (EC) No 44/2001 — Special grounds of jurisdiction — Matters relating to tort, delict or quasi-delict — Meaning — Action for a negative declaration (negative Feststellungsklage) — Right of a potential injuring party to sue the party potentially injured in the courts for the place where the harmful event occurred or may occur in order to obtain a declaration as to the non-existence of liability in tort’

I – Introduction

1. This case has to do in essence with the question whether an action for a declaration as to the non-existence of liability in tort falls within the scope of the special jurisdiction conferred ‘in matters relating to tort, delict or quasi-delict’ on ‘the courts for the place where the harmful event occurred or may occur’ under Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. ( 2 ) If the answer to that question is negative, the defendant in such an action would have to be the subject of proceedings before the courts in the jurisdiction of which it is domiciled, in accordance with the general rule of jurisdiction laid down in Article 2 of that regulation.

2. The question was referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice) in the course of a dispute between, on the one hand, Folien Fischer AG (‘Folien Fischer’) and Fofitec AG (‘Fofitec’), companies established in Switzerland, and, on the other hand, Ritrama SpA, which has its registered office in Italy. The action for a negative declaration ( 3 ) brought before a German court by Folien Fischer and Fofitec seeks a declaration that Ritrama SpA has no claim based on a tort or delict which the two claimants have allegedly committed, either on account of a commercial practice by Folien Fischer which is contested by the defendant or by reason of Fofitec’s refusal to grant the defendant licences of its patents.

3. This is an unprecedented request for an interpretation, although the Court has previously had occasion to give preliminary rulings on questions relating to actions for a negative declaration in a case between owners of goods transported under bills of lading and the owner of the ship on which they were loaded. ( 4 ) The answer to be given is of particular interest given that widely diverging positions on the applicability or otherwise of Article 5(3) of Regulation No 44/2001 to actions of this kind have been adopted both by courts in several Member States and by legal commentators, particularly in Germany, as the Bundesgerichtshof indicates in its order for reference.

II – Legal context

4. As is clear from recitals 1 and 2 in the preamble to Regulation No 44/2001, in the interests of ‘the sound operation of the internal market’, that regulation contains ‘provisions to unify the rules of conflict of jurisdiction in civil and commercial matters’ which are applicable in the Member States. ( 5 )

5. According to recital 11 in the preamble to Regulation No 44/2001, ‘[t]he rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and 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’.

6. Recital 12 in the preamble to 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’.

7. The rules of jurisdiction are set out in Articles 2 to 31 of Regulation No 44/2001, which are contained in Chapter II of that regulation.

8. Article 2(1) of the regulation, which appears in Section 1 of Chapter II, entitled ‘General provisions’, is worded as follows: ‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

9. Article 3(1) of Regulation No 44/2001, which appears in the same section, provides: ‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

10. Article 5(3) of Regulation No 44/2001, which comes under Section 2 of Chapter II, entitled ‘General provisions’, is worded as follows: ‘A person domiciled in a Member State may, in another Member State, be sued: … (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’ ( 6 )

III – Dispute in the main proceedings, question referred for a preliminary ruling and procedure before the Court

11. Folien Fischer is a company established in Switzerland which develops, manufactures and sells laminated paper goods and adhesive film. It distributes base material for continuous card forms, inter alia in Germany. Fofitec, which also has its registered office in Switzerland and is part of the Folien Fischer group of companies, holds several patents in the same field of business.

12. Ritrama SpA, a company established in Italy, develops, produces and distributes various kinds of laminates and multilayer film.

13. By letter in March 2007, Ritrama SpA alleged that the distribution policy of Folien Fisher and its refusal to grant patent licences were contrary to competition law.

14. Following that letter, Folien Fischer and Fofitec made an application for a negative declaration before the Landgericht Hamburg (Regional Court, Hamburg) (Germany) with a view to obtaining a judicial declaration, first, that Folien Fischer is not obliged to desist from its sales practice in relation to the granting of discounts and the terms of its distribution contracts and, secondly, that Ritrama SpA has no claim either to the elimination of or compensation for that sales practice. Folien Fischer and Fofitec also sought a declaration that Fofitec is not obliged to grant the defendant a licence for the relevant European patents that it holds.

15. After that action for a negative declaration had been brought, Ritrama SpA and Ritrama AG, a subsidiary established in Switzerland through which the former states that it distributes its products inter alia in Germany, brought an action for performance before the Tribunale di Milano (District Court, Milan). In support of their application for the award of damages and an order requiring Fofitec to issue mandatory licences for the patents in question, they argued that the conduct of Folien Fischer and Fofitec was anti-competitive.

16. The action for a negative declaration brought by Folien Fischer and Fofitec was dismissed as inadmissible, for lack of international jurisdiction, by judgment of the Landgericht Hamburg (Regional Court, Hamburg) of 9 May 2008.

17. That decision was confirmed on appeal on 14 January 2010 by the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) (Germany), which did not accept the international jurisdiction of the German courts, on the ground that the jurisdiction in matters relating to tort or delict provided for in Article 5(3) of Regulation No 44/2001 could not apply to an action for a negative declaration such as that brought by Folien Fischer and Fofitec since the very purpose of such an action is to establish that no tort or delict has been committed in Germany.

18. Folien Fischer and Fofitec brought an appeal on a point of law before the Bundesgerichtshof (Germany), maintaining the forms of order they had sought on appeal. In its order for reference, the Bundesgerichtshof notes that the Court of Justice has not yet given a ruling on whether the jurisdiction provided for in Article 5(3) of Regulation No 44/2001 is also established where the potential injuring party brings an action for a negative declaration seeking a declaration that the potential injured party has no claim based on an alleged tort or delict. It considers that the correct interpretation of that provision is not obvious in such cases, taking into account the divergent views expressed by legal commentators and various courts in the Member States of the European Union, as well as the Swiss Confederation so far as concerns the equivalent rule in the Lugano Convention.

19. In that context, the Bundesgerichtshof decided to stay the proceedings and refer the following question to the Court for a preliminary ruling, although it made clear that it was inclined to apply Article 5(3) of Regulation No 44/2001 to an action for a negative declaration: ‘Is Article 5(3) of [Regulation No 44/2001] to be interpreted as meaning that jurisdiction in matters relating to tort or delict also exists in respect of an action for a negative declaration in which a potential injuring party asserts that the party potentially injured by a particular situation has no claim in tort or delict (in this case, infringement of the provisions of competition law)?’

20. The reference for a preliminary ruling was lodged at the Court Registry on 18 March 2011.

21. Written observations have been submitted to the Court by Folien Fischer and Fofitec, Ritrama SpA, the French, German, Netherlands, Polish and Portuguese Governments and the Swiss Government. The written observations of the Commission, lodged after the deadline, were rejected by the President of the Court on that ground on 19 July 2011.

22. Folien Fischer and Fofitec, Ritrama SpA, the German Government and the Commission were represented at the hearing on 15 February 2012.

IV – Analysis

A – Introductory remarks

– Relevance of the question referred

23. First of all, Ritrama SpA challenged the relevance of the question referred to the resolution of the dispute in the main proceedings, on the grounds that its letter of March 2007, as mentioned by the referring court, is not a letter of formal notice but merely an invitation to enter into negotiations to settle the dispute, and that Folien Fischer and Fofitec therefore have no interest in bringing proceedings.

24. It added that, even if the answer to the question raised is in the affirmative, the German courts do not have international jurisdiction based on Article 5(3) of Regulation No 44/2001, since the unlawful act at issue could not have occurred in Germany within the meaning of the law of procedure, given that the parties to the main proceedings are not competitors in German territory and none of them is subject to German law because their respective registered offices are not situated in that country. Ritrama SpA explained at the hearing that it had not been present on the German market since 2004. In its submission, while it is true that its Swiss subsidiary, Ritrama AG, is active in Germany, companies with separate legal personalities cannot be treated as one and the same in civil proceedings concerning non-contractual liability.

25. It is settled case-law that, in preliminary ruling proceedings, the national court is, in the light of the particular circumstances of the case, in the best position to assess both the need for that reference in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court of Justice. ( 7 ) Where those questions relate to the interpretation of European Union law, the Court is in principle bound to give a ruling, albeit subject to an examination — intended to enable it to establish its own jurisdiction — of the circumstances in which those questions were referred to it by the national court. ( 8 )

26. In this instance, the Bundesgerichtshof has substantiated its reference for a preliminary ruling in a manner which I consider to be sufficient to establish that it meets an objective need connected with the resolution of the dispute in the main proceedings.

– Issues to be distinguished

27. In the light of the arguments and evidence exchanged in the course of the proceedings, it is particularly important not to confuse the various stages of the line of reasoning to be followed by a court called upon to hear and determine a dispute in a civil or commercial case involving a foreign dimension.

28. First, that court is required to verify that it does indeed have international jurisdiction, particularly in the light of the provisions of Regulation No 44/2001. This is the only issue raised by the question from the national court in this case.

29. The competent court must then examine whether national law contains any rules of procedure, ( 9 ) such as those defining conditions of admissibility, which might prevent the action from being pursued. It is only at this stage that it is appropriate to consider whether the claimant has an interest in bringing proceedings.

30. Next, that court must ascertain which law is applicable pursuant to the conflict-of-law rules contained in the provisions of European Union law, international law or, in the alternative, national law that are in force in the Member State in which it has its seat.

31. Finally, and only at this stage, it must actually apply to the dispute the law designated by the relevant conflict-of-law rule. Those provisions of substantive law determine in particular the circumstances in which the event giving rise to the harm may be considered to be harmful to the victim and the evidence which the latter must adduce in support of its claim for compensation. ( 10 )

– Impact of the case-law relating to instruments ‘parallel’ to Regulation No 44/2001

32. Consideration of the Court’s case-law on the interpretation of the Brussels Convention or the Lugano Convention is appropriate and indeed necessary given that Regulation No 44/2001, which is intended to replace the former in relations between the Member States, contains provisions that may be regarded as equivalent in substance. ( 11 )

33. This is true of Article 5(3), contained in each of those texts for the purpose of defining the rules of jurisdiction ‘in matters relating to tort, delict or quasi-delict’, even though the wording of Regulation No 44/2001 differs from that of the Brussels Convention in that it expressly includes a ground of jurisdiction based on ‘the place where the harmful event … may occur’, in common with the Lugano Convention as revised in 2007. This additional phrase serves only to provide clarification, ( 12 ) without introducing any substantial distortion between those instruments, since the Court has already held that actions to obtain an injunction preventing damage also fall within the scope of Article 5(3) of the Brussels Convention. ( 13 )

– Scope of the case

34. I would point out that this case concerns the determination of the matters covered by the special rule of jurisdiction contained in Article 5(3) of Regulation No 44/2001 and, more specifically, the definition of the connecting factor provided for by that provision.

35. The Court is not required to rule on the question as to whether and in what circumstances actions for a negative declaration are admissible in cases of non-contractual liability. That question, concerned above all with the claimant’s interest in bringing proceedings, is a matter for the procedural law of each Member State, even though the specific nature of such actions must be taken into account in the application of Article 5(3) of Regulation No 44/2001.

36. If the Court finds that the special rule of jurisdiction contained in that derogating provision cannot be applied to this type of action, it is the courts designated by the general rule laid down in Article 2 of that regulation, that is to say the courts of the Member State in which the defendant is domiciled, which will have jurisdiction to rule on the admissibility and, if necessary, the merits of such an action.

B – Applicability or otherwise of Article 5(3) of Regulation No 44/2001 to actions for a negative declaration in matters relating to tort or delict

– Issue raised by the question referred

37. The referring court asks the Court to state whether an action for a negative declaration such as that in the dispute in the main proceedings falls within the scope of Article 5(3) of Regulation No 44/2001. More specifically, the question is whether a German court may base its international jurisdiction on that provision, which designates ‘the courts for the place where the harmful event occurred or may occur’, for the purposes of hearing and determining the application made by Folien Fischer and Fofitec for a declaration as to the non-existence, in a competition case, of civil liability for a tort or delict allegedly committed by those companies, which are governed by Swiss law and operate inter alia on the German market.

38. The Court has never before ruled on that question. The courts of the Member States of the European Union and the Swiss Confederation, on the other hand, have expressed their views, albeit not to the same effect. According to the not exhaustive information available to me, many courts in the Member States, ( 14 ) although not all, ( 15 ) have held Article 5(3) of Regulation No 44/2001 not to be applicable to actions for a negative declaration in matters relating to tort or delict, whereas the Swiss Federal Court has been in favour of applying to such cases the identical provisions contained in Article 5(3) of the Lugano Convention where jurisdiction over converse actions for performance has fallen to the Swiss courts. ( 16 )

39. The referring court indicates that it is also inclined to the view that international jurisdiction over an action for a declaration as to the absence of a tort or delict can be defined by reference to Article 5(3) of Regulation No 44/2001. The Bundesgerichtshof explains that the prevailing view among German legal commentators ( 17 ) is that the court which is competent in matters relating to tort or delict on the basis of that provision may also be seised of an action for a negative declaration as to the non-existence of a claim based on a potential tort or delict.

40. In this regard, it is submitted, both by the Member States which have intervened in this case and by the referring court, that, after the fashion of a mirror image, the same approach to the rules of jurisdiction should be adopted with respect to an action for a negative declaration in a matter relating to tort or delict and with respect to the action for performance or for damages which, as its symmetrical opposite, is the counterpart of the former action.

41. However, just as an image can be distorted by a mirror, the symmetry referred to may not be perfect or indeed relevant at all. In this instance, I am inclined to think, not without some reservations, that the majority view in the present case may be open to question, taking into account not least the wording and purpose of Article 5(3) of Regulation No 44/2001, the fact that it is immaterial in this case that an action for a negative declaration and a positive action have the same object, and the practical consequences of the broad interpretation suggested.

42. I should say here and now that I do not rule out the possibility that actions for a negative declaration may fall within the scope of the rules of jurisdiction set out in Regulation No 44/2001, bearing in mind that the conditions governing their admissibility in the courts of the Member States are themselves laid down by the national rules of procedure. I would point out here that, while national approaches vary, the possibility of resorting to an action for a negative declaration is generally subject to conditions connected with the object of that action and the claimant’s legal interest or his interest in availing himself of that remedy. ( 18 )

43. However, it is my view that, if such an action is exercised in matters relating to tort or delict, it is not the special rule of jurisdiction laid down in Article 5(3) of that regulation but the general rule of jurisdiction set out in Article 2 of the same regulation which must apply, for the reasons which I shall explain below.

– Literal interpretation of Article 5(3) of Regulation No 44/2001

44. It is settled case-law that, in order to ensure that it is fully effective and uniformly applied in all the Member States, the terms contained in Regulation No 44/2001 must be interpreted not by reference only to the domestic law of one or other of the Member States concerned but independently, by reference principally to the system and objectives of the text. ( 19 )

45. The Court has repeatedly held that the expression ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of the Brussels Convention covers all actions ‘which seek to establish the liability of a defendant’ and which ‘are not related to a “contract” within the meaning of Article 5(1) of the Convention’, a contract entailing an obligation freely entered into by one party towards another. ( 20 ) That case-law, which is transposable to Article 5(3) of Regulation No 44/2001, establishes a classification criterion requiring that two conditions be fulfilled: on the one hand, a positive condition relating to the object of the action and, on the other hand, a negative condition relating to the cause of action. ( 21 )

46. It follows that a court of a Member State may have jurisdiction on the basis of Article 5(3) of Regulation No 44/2001 only if the action brought before it ‘seeks to establish the liability of the defendant in tort, delict or quasi-delict’ ( 22 ) in order to compel him to cease an act liable to cause damage or to make good such damage if it has already occurred. In the case of an action for a negative declaration, however, it is not the defendant who is accused of committing a harmful act and whose liability is sought to be established but the claimant who seeks an order establishing the contrary, in other words that he is not the perpetrator of a wrongful act capable of causing damage that would support a claim to compensation. In this regard, the German Government has rightly pointed out — although I do not agree with the conclusion which it draws from its point — that, in an action for a negative declaration, the normal roles in matters relating to tort or delict are reversed, since, in this instance, the claimant is the potential debtor of a claim based on a tort or delict, whereas the defendant is the potential victim of that act.

47. Thus, an application for a negative declaration does not seek to establish the liability of the defendant, as in the case-law cited above, but on the contrary, seeks to rule out the claimant’s liability. Furthermore, an action such as that at issue in the main proceedings is not, strictly speaking, an action for liability in tort, since it does not seek a finding as to the existence of infringements of competition law allegedly committed by the claimants on German territory, but has the diametrically opposed objective of exonerating them by seeking a finding that their conduct is in conformity with that law. More specifically, Folien Fischer and Fofitec do not contest the existence of acts liable to constitute an event giving rise to possible damage, but state that they cannot be held liable since those acts are not unlawful.

48. In the case-law arising from the judgment in Mines de Potasse d’Alsace, ( 23 ) the Court interpreted Article 5(3) of the Brussels Convention in such a way as to allow the claimant a choice between the place of the event giving rise to the damage and the place where the damage occurred. ( 24 ) Although the Court does not expressly say so, it seems to me that the choice between two fora which was thus made available to the claimant in an action in a matter relating to tort or delict is intended to favour the presumed victim, who is generally the claimant in the proceedings. ( 25 ) There is nothing in the case-law to indicate that the same favour should be extended to the perpetrator of a possible harmful act.

49. The judgment in Henkel, concerning the Brussels Convention, and the wording of Article 5(3) of Regulation No 44/2001 do make it possible to include within the scope of that provision the consideration of damage which has not yet occurred but which may occur by reason of an identified harmful event. The damage resulting from a tort or delict may indeed occur only in the future, but it must be real rather than abstract, otherwise the special ground of jurisdiction constituted by matters relating to tort or delict could be created on a discretionary basis. It is true that an action for liability in tort may be based on a risk where the cause of potential damage exists and is identifiable but the damage itself has not yet occurred. An action for a negative declaration, on the other hand, presupposes that even the risk of the damage actually occurring is excluded, thus effectively eliminating the connecting factor, and therefore the specific ground of jurisdiction attaching to it, as provided for in Article 5(3) of Regulation No 44/2001.

50. An action for a negative declaration seeks a finding in private law which in my view necessarily implies that the connecting factor in international procedural law does not exist. It is certainly possible to envisage a situation in which the claimant accepts that the defendant has suffered damage but seeks a negative finding to the effect that it is not liable for that damage, on the ground for example that the act committed is not unlawful or that there is no causal link between the act at issue and the damage alleged. ( 26 ) Nevertheless, even in that situation, the application of Article 5(3) of Regulation No 44/2001 to such an action for a negative declaration does not seem to me to be compatible with the case-law set out in the judgment in Tacconi, since, in that event, the application does not seek to ‘establish the liability of the defendant’ and does not therefore, in my opinion, fall within the scope of that special provision but within the scope of the general rule of jurisdiction based on the domicile of the defendant.

51. In this case, the referring court points out that the effect of Fofitec’s refusal to grant licences is felt in the territory of the Federal Republic of Germany, a Member State whose law, according to the Bundesgerichtshof, is applicable by virtue of the relevant conflict-of-law rules. In the judgment in Marinari, ( 27 ) however, the Court held that the Brussels Convention did not intend to link its rules on territorial jurisdiction to the national provisions relating to the conditions governing non-contractual civil liability. I would add in this regard that Article 6(3) of Regulation (EC) No 864/2007 ( 28 ) authorises the party seeking compensation to choose between the laws applicable to a non-contractual obligation arising from an act restricting competition which affects the market in more than one Member State.

52. With respect to the interpretation of Article 5(3) of the Brussels Convention, and therefore also the similar rule of jurisdiction contained in Regulation No 44/2001, the Court has ruled that a non-contractual action does not fall within the scope of that provision where it does not seek compensation for harm within the meaning of that provision, even if the action is based on allegedly wrongful conduct. ( 29 )

53. Consequently, a literal interpretation of Article 5(3) of Regulation No 44/2001 does not support the idea that that provision is applicable to actions for a negative declaration.

– Teleological interpretation of Article 5(3) of Regulation No 44/2001

54. The purpose of Regulation No 44/2001 is in particular to strengthen the legal protection of persons established in the European Union by enabling the claimant to identify easily the court in which he may sue and a normally well-informed defendant reasonably to foresee in which court he may be sued. ( 30 )

55. In this regard, it is clear from recital 11 in the preamble to Regulation No 44/2001 that, in the interests of predictability, and therefore legal certainty, preference must always be given to the general ground of jurisdiction based on the defendant’s domicile, save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different connecting factor.

56. Article 5(3) of Regulation No 44/2001 is a rule of jurisdiction which derogates from the general rule of jurisdiction laid down in Article 2(1), the aim of which is to protect the party against whom the action is brought. ( 31 ) It must therefore be interpreted in a strict, not to say restrictive, fashion. ( 32 )

57. The purpose of the special rule of jurisdiction set out in Article 5(3) of Regulation No 44/2001 is to take account of ‘the existence of a particularly close connecting factor between [the] dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of proceedings’. ( 33 ) That provision gives the claimant a choice by allowing him, exceptionally, to seise a court situated in a State other than that in which the defendant is domiciled, by reason of the particular factor connecting that court to the nature of the dispute. In order to be able to derogate in this way from the forum of the defendant’s domicile, it is essential to verify that, in the light of the facts of the dispute concerned, there is indeed a proximity factor, ( 34 ) the need for which is all the more important here given that there must be a ‘particularly close’ connecting factor between the dispute and the court seised, that is to say the court ( 35 ) of the place ‘where the harmful act occurred or may occur’ within the meaning of the provision at issue.

58. In an action for a negative declaration, such enhanced proximity cannot be identified without risk of error. Thus, in the dispute in the main proceedings, the international jurisdiction of the German court seised would have had to be based on the anti-competitive effect on the German market of acts or omissions by two companies established in Switzerland, to the detriment of an Italian company, Ritrama SpA, which denies having carried on activities in Germany but has undoubtedly undertaken production and marketing operations in other Member States of the European Union. After all, in matters of competition, there are various factors which may give rise to a dispersal of the grounds of jurisdiction attaching to unlawful acts and their effects.

59. In my opinion, the purpose of Article 5(3) of Regulation No 44/2001 does not make it possible to include within its scope disputes relating to the non-existence of a tort or delict. The same inference must be drawn with respect to the general scheme of which that provision forms part.

– Schematic interpretation of Article 5(3) of Regulation No 44/2001

60. It is true that, in Tatry, which concerned the interpretation of Article 21 of the Brussels Convention, ( 36 ) relating to lis pendens, the Court held that, in the case of shipping under a bill of lading, there was an equivalence of cause and object between, on the one hand, a claim for compensation for loss and, on the other hand, a converse application for a ruling that no loss had occurred. ( 37 ) The referring court and the parties which have submitted observations, with the exception of Ritrama SpA, take the view that that case-law must be transposed to the interpretation of Article 5(3) of Regulation No 44/2001 and that the consequence of doing so must be that the ground of jurisdiction provided for in that article is also applicable to actions for a negative declaration. ( 38 )

61. All the same, the case-law arising from Tatry, does not seem to me to represent a serious obstacle to the restrictive interpretation of Article 5(3) of Regulation No 44/2001 which I am recommending. I accept that, in matters relating to tort or delict, an action for a negative declaration may have the same object as the positive action of which it is the counterpart, in so far as one seeks a judicial declaration that a potential perpetrator has not committed a harmful act whereas the other seeks to establish the opposite.

62. However, although the notion of the object of the action does make it possible to define the scope of the dispute submitted to a court for the purposes of establishing lis pendens and the authority of res judicata arising from such a situation, in accordance with that judgment, this does not mean that that notion makes it possible to determine whether or not a given action exhibits the connecting factor required by Article 5(3) of Regulation No 44/2001.

63. After all, in Tatry, the Court’s ruling was concerned only with provisions relating to lis pendens, which do not as such lay down grounds of jurisdiction but merely determine which of the two courts seised concomitantly must give a ruling first. The issue was therefore very different from that before the Court in this case.

64. Furthermore, in my view, the form of words used in Article 5 of Regulation No 44/2001 means that jurisdiction is based not on the object of the action but on the connecting factor stipulated for each special ground of jurisdiction, which, as a comparative analysis of the rules of jurisdiction contained in that article shows, are two different things. Thus, ‘in matters relating to a contract’, the connecting factor is ‘the place of performance of the obligation in question’ (Article 5(1) of Regulation No 44/2001); ‘in matters relating to maintenance’, the connecting factor is ‘the place where the maintenance creditor is domiciled or habitually resident’ (Article 5(2) of Regulation No 44/2001).

65. The interveners who submit that Article 5(3) of Regulation No 44/2001 covers actions seeking a finding as to the absence of liability in tort argue that, under the other grounds of jurisdiction provided for in Article 5 of that regulation, the same rule applies to an action for a negative declaration as to a positive action.

66. Nevertheless, it is my view that, in situations other than that referred to in Article 5(3) of Regulation No 44/2001, the positive or negative nature of a legal action has no bearing on the connecting factor stipulated in the provisions of Article 5. In matters relating to tort or delict, on the other hand, the nature of the action is an essential criterion in determining jurisdiction, since what matters is the existence or otherwise of the harmful event determining the connecting factor.

– Practical consequences of a broad interpretation of Article 5(3) of Regulation No 44/2001

67. The French Government puts forward a specific proposal in which it advocates that the authority of res judicata of the decision given on the basis of an action for a negative declaration such as that in the main proceedings should be confined to the territory of the Member State in which the competent court has its seat, given that actions of that type are not admissible as such in French law on non-contractual liability.

68. In my opinion, it would be contrary to the system established by Regulation No 44/2001 to consent initially to a ground of jurisdiction such as that referred to in the order for reference but then at a later stage to take the view that, since the legal or practical consequences of such consent are unacceptable, the effect of the decision which the court concerned might give should be confined to the territory of the Member State in which that court is situated.

69. The provisions of Regulation No 44/2001 must be capable of producing their effects as between all the Member States, without limitation to the territory of a given Member State, as the French Government has suggested, since that regulation would otherwise lose its effectiveness. ( 39 ) The purpose and very raison d’être of Regulation No 44/2001 is to lay down rules of jurisdiction which apply to the courts of all the Member States simultaneously and which ensure that for one and the same dispute a single decision is given that has international effects. ( 40 )

70. It is true that the Court has accepted that one party may ‘torpedo’ or ‘short-circuit’ the action of the other party by means of a lis pendens objection through an extensive application of Article 21 of the Brussels Convention. ( 41 ) However, accepting the proposition that an action for a negative declaration in a matter relating to tort or delict may be based on the special ground of jurisdiction provided for in Article 5(3) of Regulation No 44/2001 could, in my opinion, exacerbate the risk of torpedo actions by giving the perpetrators of potentially harmful acts the option of bringing proceedings before a court other than that of the place in which the defendant is domiciled. ( 42 )

71. The adoption of an interpretation of Article 5(3) of Regulation No 44/2001 which is satisfactory in theory but would lead to problems in practice is to be avoided.

72. Consequently, I take the view that the Court should opt for a narrow understanding of the scope of the special rule of jurisdiction contained in Article 5(3) of Regulation No 44/2001 in terms of its possible applicability to actions for a negative declaration in non-contractual matters and give preference to the general rule of jurisdiction based on the defendant’s domicile.

V – Conclusion

73. In the light of the foregoing considerations, I propose that the Court’s answer to the question referred to it for a preliminary ruling by the Bundesgerichtshof should be as follows: Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that jurisdiction in matters relating to tort or delict does not exist in respect of an action for a negative declaration in which a potential injuring party asserts that the party potentially injured by a particular situation has no claim in tort or delict.

( 1 ) Original language: French.

( 2 ) OJ 2001 L 12, p. 1. For the consolidated text incorporating into the basic text the successive amendments and corrections made to that regulation, which are not relevant to the present case, see 2001R0044-FR-8.4.2009-007.001-1.

( 3 ) Action known in German law as a ‘negative Feststellungsklage’.

( 4 ) Case C-406/92 Tatry [1994] ECR I-5439.

( 5 ) In this Opinion, the term ‘Member State’ refers to the Member States of the European Union with the exception of the Kingdom of Denmark, in accordance with Article 1(3) of Regulation No 44/2001.

( 6 ) Article 5(3) of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968 (OJ 1978 L 304, p. 36), as adapted by the successive accession conventions (consolidated text; OJ 1998 C 27, p. 1, ‘the Brussels Convention’) lays down a rule that is similar in substance but does not expressly apply to cases where the harmful event ‘may occur’.

A rule identical in every respect to that contained in Regulation No 44/2001 appears in Article 5(3) of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed in Lugano on 16 September 1988 (OJ 1988 L 319, p. 9), as revised by the Convention signed in Lugano on 30 October 2007 (see Council Decision 2007/712/EC of 15 October 2007 on the signing of the Convention on behalf of the Community, OJ 2007 L 339, p. 1), which entered into force on 1 May 2011 and is between the European Community, the Kingdom of Denmark, the Republic of Iceland, the Kingdom of Norway and the Swiss Confederation (‘the Lugano Convention’).

( 7 ) See, in particular, Case C-467/08 Padawan [2010] ECR I-10055, paragraph 21 et seq. and case-law cited.

( 8 ) See, in particular, Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraph 39 et seq.

( 9 ) The Court recently held that Regulation No 44/2001, like the Brussels Convention, is not intended to unify all the procedural rules of the Member States but that, in the context of their procedural autonomy, Member States may not lay down procedural rules applicable to actions brought before their courts which are contrary to European Union law, in particular the provisions of that regulation (Case C-292/10 G [2012] ECR, paragraphs 44 and 45).

( 10 ) The judgment in Case C-68/93 Shevill and Others [1995] ECR I-415, paragraphs 38 to 41, stated that ‘the criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the victim of the defamation are not governed by the [Brussels] Convention but by the substantive law determined by the national conflict of laws rules of the court seised, provided that the effectiveness of the Convention is not thereby impaired’. The same applies to Regulation No 44/2001.

( 11 ) See, inter alia Joined Cases C-509/09 and C-161/10 eDate Advertising and Others [2011] ECR I-10269, paragraph 39 and case-law cited.

( 12 ) See, by analogy, Explanatory Report on the Lugano Convention, by F. Pocar, OJ 2009 C 319, p. 15, paragraph 61.

( 13 ) See Case C-167/00 Henkel [2002] ECR I-8111, concerning a preventive action brought by a consumer protection organisation seeking an injunction to prevent a trader from using unfair terms in consumer contracts, and Case C-18/02 DFDS Torline [2004] ECR I-1417, concerning a preventive action brought by an association of shipowners to contest the legality of the notice of industrial action which they considered to be potentially damaging.

( 14 ) Decisions as to the inapplicability of Article 5(3) of Regulation No 44/2001 given in particular in Germany by the Landgericht München (Regional Court, Munich) on 23 October 2008 (7 O 17209/07, www.juris.de) and the Oberlandesgericht Dresden (Higher Regional Court, Dresden) on 28 July 2009 (14 U 1008/08, www.juris.de). As regards the similar ground of jurisdiction contained in Article 5(3) of the Brussels Convention, see, in Germany: Oberlandesgericht München, judgment of 25 October 2001 (6 U 5508/00, www.juris.de), in the Netherlands: Gerechtshof ’s-Gravenhage (Regional Court of Appeal, The Hague), judgment of 22 January 1998, Evans v Chiron (IEPT19980122) and Rechtbank ’s-Gravenhage (Court of The Hague), judgment of 19 June 2002, Freelift v Stannah Stairlifts (NiPR 2002, Afl. 4, No. 279), and in Italy: Tribunale di Bologna (District Court, Bologna), judgment of 22 September 1998 (Resp. civ. e prev., 2000, p. 754), Corte suprema di cassazione (Court of Cassation), judgment of 19 December 2003 (n. 19550, Riv. Dir. Ind., 2005, II, p. 162) and Corte di appello de Milano (Court of Appeal, Milan), judgment of 2 March 2004 (Dir. ind., 2004, p. 431).

( 15 ) Decisions in favour of the application of Article 5(3) of Regulation No 44/2001 given: in Germany by the Oberlandesgericht Düsseldorf on 12 May 2005 (I-2 U 67/03, No 34, www.juris.de) and the Landgericht Frankfurt on 25 March 2010 (2-03 O 580/08, 2/03 O 580/08, 2/3 O 580/08, 2-3 O 580/08, www.juris.de); in the Netherlands, by the Rechtbank Breda on 29 June 2011, Mivena v Geogreen c.s. (LJN: BR0157); and in the United Kingdom by the High Court of Justice (England and Wales), Queen’s Bench Division (Commercial Court), Equitas Ltd and another v Wave City Shipping Co Ltd and others, at para 11, Christopher Clarke LJ (2005) EWHC 923 (Comm). See also decisions in favour of the application of Article 5(3) of the Brussels Convention given in Italy by the Corte suprema di cassazione on 17 October 2002 (n. 14769, Riv. dir. inter., 2003, p. 238) and the Tribunal de Brescia on 11 November 1999 (Riv. Dir. Ind., II, p. 236).

( 16 ) See, in particular, judgments of the Swiss Federal Court of 2 August 1999 ATF 125 III 346, 23 October 2006, G. GmbH. v A. AG und B. AG (4C.210/2006, ATF 132 III 778), 23 October 2006, F. AG v G. GmbH (4C.208/2006/len) and 13 March 2007 (ATF 133 III 282). See the Court of Justice website (http://curia.europa.eu/common/recdoc/convention/fr/tableau/tableau.htm) under ‘Information pursuant to Protocol 2 annexed to the Lugano Convention’, nos 2000/19, 2007/14, 2008/19 and 2008/20 respectively.

( 17 ) See paragraph 13 of the order for reference.

( 18 ) I would point out that this type of action may force the alleged victim, in so far as he has a potential claim to damages, to take part in judicial proceedings at a stage when he is not yet able to furnish the proof necessary to satisfy the burden of proving the existence of the non-contractual liability from which the other party seeks to be exempt.

( 19 ) The terms must be interpreted independently of the definition given in the substantive law designated by the conflict-of-law rules in force in the Member State in which the court seised has its seat. See, in particular, concerning the Brussels Convention, Case C-261/90 Reichert and Kockler [1992] ECR I-2149, paragraph 15, Case C-27/02 Engler [2005] ECR I-481, paragraph 33, and, concerning Regulation No 44/2001, Case C-189/08 Zuid-Chemie [2009] ECR I-6917, paragraph 17 and case-law cited.

( 20 ) See in particular Case C-334/00 Tacconi [2002] ECR I-7357, paragraphs 21 to 23 and case-law cited.

( 21 ) In this case, the second condition governing the applicability of Article 5(3) of Regulation No 44/2001 does not present a problem, since it is clear that the legal relationship that Folien Fischer and Fofitec have with Ritrama SpA is not contractual.

( 22 ) See Henkel, paragraph 41.

( 23 ) Case 21/76 [1976] ECR 1735.

( 24 ) See in particular Case C-364/93 Marinari [1995] ECR I-2719, paragraphs 11 and 12.

( 25 ) In point 17 of his Opinion in pending Case C-523/10 Wintersteiger Advocate General Cruz Villalon refers in that regard to ‘allowing the victim of the damage a certain amount of … discretion’.

( 26 ) On the need to establish a causal link between the damage and the event giving rise to that damage, see in particular DFDS Torline, paragraph 32 and case-law cited.

( 27 ) Cited above, paragraph 16 et seq.

( 28 ) Regulation of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ 2007 L 199, p. 40.

( 29 ) Thus the judgment in Reichert and Kockler (cited above, paragraphs 19 and 20) excluded the action paulienne in French law from the scope of the Brussels Convention on the grounds that ‘[its] purpose … is not to have the debtor ordered to make good the damage he has caused his creditor by his fraudulent conduct but to render ineffective, as against his creditor, the disposition which the debtor has made’ and that it is not therefore ‘a claim seeking to establish the liability of a defendant in the sense in which it is understood in Article 5(3) of the Convention’.

( 30 ) See in particular Case C-256/00 Besix [2002] ECR I-1699, paragraph 26 and case-law cited, and G, paragraph 39 and case-law cited.

( 31 ) The rule laid down in Article 2 tends to favour the defendant, generally the weaker party because he is the party sued, by allowing him to defend himself more easily. See Case C-295/95 Farrell [1995] ECR I-1683, paragraph 19, and Case C-412/98 Group Josi [2000] ECR I-5925, paragraph 35.

( 32 ) The Court has expressly held that the rules of jurisdiction which derogate from the general principle that jurisdiction lies with the courts of the State in the territory of which the defendant is domiciled cannot give rise to an interpretation going beyond the circumstances contemplated by the Convention. See Case C-51/97 Réunion européenne and Others [1998] ECR I-6511, paragraph 16, and Zuid-Chemie, paragraph 22 and case-law cited. The same applies to Regulation No 44/2001.

( 33 ) With regard to Article 5(3) of the Brussels Convention, see Case C-168/02 Kronhofer [2004] ECR I-6009, paragraph 15 and case-law cited. With regard to Article 5(3) of Regulation No 44/2001 see eDate Advertising and Others, paragraph 40 and case-law cited.

( 34 ) Recital 12 in the preamble to Regulation No 44/2001 states that a special connecting factor other than that based on the defendant’s domicile is justified in certain cases where there is a close link between the court and the dispute or in order to facilitate the sound administration of justice. See also the European Parliament Resolution of 7 September 2010 on the implementation and review of Council Regulation No 44/2001, which proposes the introduction of a requirement of a ‘sufficient, substantial or significant link’ in order to ‘restrict the possibility for forum shopping in tort or delict (2009/2140(INI), P7 TA(2010)0304, recital Q and point 25).

( 35 ) I would point out that Article 5(3) of Regulation No 44/2001 establishes a ground of jurisdiction which is not extended to all the courts of a Member States, as is the case under Article 2 of that regulation, but is restricted to the court closest to the tort, delict or quasi-delict.

( 36 ) The equivalent provision in Regulation No 44/2001 appears in Article 27, paragraphs 1 and 2 of which state that ‘[w]here proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established’ and that ‘[w]here the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court’. Article 27 of the Lugano Convention, as revised in 2007, is similar in substance.

( 37 ) The judgment in Tatry states: ‘For the purpose of Article 21 … an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object … as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss’.

( 38 ) I note that that case-law has given rise to proposals for it to be called in question. Consideration has been given to excluding the application of the lis pendens rule in cases where an action confined to an application for a negative declaration is brought concomitantly with an action on the merits, particularly where the former action has the covert purpose of ‘torpedoing’ the latter. See the Commission Report to the European Parliament, the Council and the European Economic and Social Committee on the application of Regulation No 44/2001 (COM(2009) 174 final, paragraphs 3.3 and 3.4) and the Green Paper on the review of Regulation No 44/2001 (COM(2009) 175 final, pages 5 and 7).

( 39 ) The effects of a judgment given by a court of a Member State extend in principle throughout the European Union, subject to the conditions laid down in Chapter III of Regulation No 44/2001. In this regard, every Member State is required to recognise and enforce a decision given in another Member State, thus conferring on that judgment the cross-border effect stipulated by that regulation.

( 40 ) There is no contradiction between this point and the case-law arising from the judgments in Shevill and Others and eDate Advertising and Others, in which the Court restricted the territorial jurisdiction of the courts in certain situations but not the authority of res judicata of the decisions given by those courts.

( 41 ) See Tatry, read in conjunction with the judgment in Case C-116/02 Gasser [2003] ECR I-14693, paragraphs 41 and 71 et seq.

( 42 ) In its report on the application of Regulation No 44/2001 (cited in footnote 38, paragraph 3.4), the Commission drew attention to the fact that certain parties ‘have attempted to pre-empt the exercise of jurisdiction by a competent court by starting proceedings before another court which usually, although not always, lacks jurisdiction, preferably in a State where the proceedings to decide on the jurisdiction issue and/or the merits take a long time. Such tactics (“torpedoes”) may be particularly abusive if the first proceedings are aimed at a declaration of non-liability, thereby effectively preventing proceedings on the merits by the other party before a competent court. They may even lead to a situation that no claim for damages may be brought at all’.