CELEX: 61993CC0364
Language: en
Date: 1994-09-21 00:00:00
Title: Opinion of Mr Advocate General Darmon delivered on 21 September 1994. # Antonio Marinari v Lloyds Bank plc and Zubaidi Trading Company. # Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. # Brussels Convention - Article 5 (3) - Place where the harmful event occurred. # Case C-364/93.

OPINION OF ADVOCATE GENERAL
      DARMON
      delivered on 21 September 1994 (
            *1
         )
      
               1. 
            
            
               By an order of 21 January 1993, the Corte Suprema di Cassazione seeks clarification as to the interpretation of Article 5(3) of the Brussels Convention of 27 September 1968 on jurisdiction and enforcement of judgments in civil and commercial matters (
                     1
                  ) (hereinafter ‘the Convention’) in connection with a dispute, the facts of which may be summarized as follows.
            
         
               2. 
            
            
               In April 1987, Antonio Marinari, who was domiciled in Italy, lodged with a Manchester branch of Lloyds Bank, whose registered office is in London, promissory notes of an exchange value of US $752500000, issued by the Negros Oriental province of the Republic of the Philippines in favour of Zubaidi Trading Company of Beirut. According to the order from the national court, the bank staff, after opening the envelope, refused to return the promissory notes and advised the police of the allegedly dubious origin of the notes, which led to the arrest of the plaintiff in the main proceedings and the sequestration of the promissory notes.
            
         
               3. 
            
            
               Having been released by the English authorities, Mr Marinari sued Lloyds Bank in the Tribunale di Pisa for compensation for the damage he claimed to have suffered as a result of the conduct of the bank's employees. As was made clear by his counsel at the hearing, he seeks not the return of the promissory notes but an order that the bank pay him US$795500000, representing the exchange value of the notes together with US $43000000 for interest, expenses and damages.
            
         
               4. 
            
            
               Lloyds Bank objected that the Italian court lacked jurisdiction on the ground that the damage constituting the basis of jurisdiction rattorte loci had occurred in England. Mr Marinari, supported by Zubaidi, applied to the Corte Suprema di Cassazione for a prior ruling on that issue of jurisdiction.
            
         
               5. 
            
            
               It is for that reason that the latter court has submitted the following question for a preliminary ruling:
               ‘In applying the jurisdiction rule laid down in Article 5(3) of the Brussels Convention of 27 September 1968, as interpreted in the judgment of the Court of Justice of the European Communities of 30 November 1976 in Case 21/76 Bier v Mines de Potasse d'Alsace [1976] ECR 1735, is the expression “place where the harmful event occurred” to be taken to mean only the place in which physical harm was caused to persons or things, or also the place in which the damage to the plaintiff's assets occurred?’
            
         
               6. 
            
            
               Before the provision at issue is analysed, it is necessary to consider whether this Court has jurisdiction, having regard to the circumstances in which the case has been referred to it.
            
         
               7. 
            
            
               The Corte Suprema di Cassazione is not hearing an appeal against a decision of a lower court but is dealing with the matter on the basis of Article 41 of the Italian Code of Civil Procedure, under which any party may, by application, in any case where the jurisdiction of the court seised at first instance is in dispute, obtain an order that the latter stay the proceedings until the issue has been decided by the Corte Suprema di Cassazione.
            
         
               8. 
            
            
               Whilst it is undeniable that the latter court is a court within the meaning of Article 2(1) of the Protocol, it is not on the other hand called on directly to give judgment in so far as the case remains pending before the Tribunale de Pisa and it is not a court within the meaning of the Protocol since it is giving judgment neither on an appeal nor in the context of Article 37 of the Convention.
            
         
               9. 
            
            
               It will be recalled that Article 3(1) of the Protocol, on which the Corte Suprema di Cassazione seems to be relying, provides:
               ‘Where a question of interpretation of the convention or of one of the other instruments referred to in Article 1 is raised in a case pending before one of the courts listed in Article 2(1), that court shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.’
            
         
               10. 
            
            
               However, it must be noted that where that superior court makes a ruling on the basis of Article 41 of the Code of Civil Procedure, the decision given constitutes a reply to a request for a preliminary ruling under domestic law for which it alone has jurisdiction and against which there is no appeal.
            
         
               11. 
            
            
               As Mt Mandrioli writes in his Corso di Diritto Processuale Civile: (
                        2
                     )
               
               ‘... l'istanza di regolamento non apre affatto un nuovo grado di giudizio, ma apre solo una parentesi che si inserisce nell'ambito del giudizio di primo grado. Chiuso questa parentesi, il giudizio prosegue sui suoi normali binari; la pronuncia sulla giurisdizione appartiene alla sentenza di primo grado anche se, naturalmente, questa parte della sentenza non è più impugnabile’. (
                     3
                  )
            
         
               12. 
            
            
               I therefore consider that the question has been properly submitted and should be answered.
            
         
               13. 
            
            
               The question relates essentially to the relevance, for the purpose of determining jurisdiction under Article 5(3), not only of the immediate effects of the causal event (physical damage caused to persons or things) but also of the harmful consequences of those effects for the plaintiff's assets (financial damage).
            
         
               14. 
            
            
               It should also be borne in mind that as well as being at issue in Shevill, (
                     4
                  ) which is now at the deliberation stage and in which I delivered my Opinion on 14 July of this year, that provision has already been the subject, as regards the term ‘place where the harmful event occurred’, of two of the Court's judgments, namely Mines de Potasse d'Alsace and Dumez France and Tracoba. (
                     5
                  )
            
         
               15. 
            
            
               In the first of those judgments, the Court expounded its own view of the meaning of the expression ‘place where the harmful event occurred’ in a dispute concerning cross-frontier pollution affecting a market gardener established in the Netherlands, for which a French undertaking established in France was considered responsible.
            
         
               16. 
            
            
               The Court held that the special jurisdictions under Article 5 were based on
               ‘the existence, in certain clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings’, (
                     6
                  ) although it did not refer to the need to protect the victim.
            
         
               17. 
            
            
               And the Court considered that ‘the place where the harmful event occurred’ should be taken to include
               ‘both the place where the damage occurred and the place of the event giving rise to it’. (
                     7
                  )
            
         
               18. 
            
            
               Legal writers have taken different views concerning the grounds of that judgment and the solution arrived at. Without going into the details of a debate that is now over, it will be remembered that Mr Droz (
                     8
                  ) criticized that decision on the ground that it enabled the ‘secondary’ victims to institute proceedings in the courts for the place where they lived and thus favoured the forum actońs. Mr Gothot and Mr Holleaux (
                     9
                  ) did not take the same view of that decision and expressed the opposite opinion, namely that it was confined
               ‘to cases in which the causative event and the first physical manifestation of the damage are separate from the outset’. (
                     10
                  )
            
         
               19. 
            
            
               
                  Dumez gave the Court an opportunity to settle the debate.
            
         
               20. 
            
            
               Let us recall the facts. Two French parent companies had brought proceedings in France against two German banks for compensation for damage resulting from the winding up of their two German subsidiaries which were carrying out a real-estate project in Germany, on the ground that they were wound up as a result of suspension of the works brought about by the banks' withdrawing credit facilities granted to the promoter.
            
         
               21. 
            
            
               I suggested that the Court should reject the approach whereby the courts of the place where the victim ‘by ricochet’ suffered damage were recognized as having jurisdiction. The Court agreed, stating:
               ‘The rule on jurisdiction laid down in Article 5(3) of the Convention of 27 September 1968 ... cannot be interpreted as permitting a plaintiff pleading damage which he claims to be the consequence of the harm suffered by other persons who were direct victims of the harmful act to bring proceedings against the perpetrator of that act in the courts of the place in which he himself ascertained the damage to his assets.’ (
                     11
                  )
            
         
               22. 
            
            
               Let us be clear: the exclusion of the courts of the place where the damage is ascertained — that is to say, where the harm is suffered, not where it occurred — must apply both to the direct victim and to the indirect victim, otherwise the jurisdiction of the courts for the place where the plaintiff lived, which Article 3 of the Convention specifically takes care to remove, would be revived.
            
         
               23. 
            
            
               Advocate General Warner had already stated that view in his Opinion in Rüffer. (
                     12
                  )
               ‘It was never suggested ... 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 damage to its business was quantified.’ (
                     13
                  )
            
         
               24. 
            
            
               That view was also shared by the national courts which had been called on to give their views concerning the jurisdiction of the courts for the place where the assets were situated, within whose territorial jurisdiction a financial loss had occurred in the wake of initial damage. I have already examined the decisions of certain courts in some of the contracting States and I shall merely refer in that connection to paragraphs 20 to 24 of my Opinion in Dumez.
               
            
         
               25. 
            
            
               And the Mines de Potasse d'Alsace judgment does not, contrary to the contention of the plaintiff in the main proceedings, provide any basis for a different interpretation merely because the Court held that
               ‘where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression “place where the harmful event occurred” ... must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it’.
            
         
               26. 
            
            
               That case concerned a complex situation in which the causal event and the harmful consequences occurred, from the outset, in two different contracting States. Here, by contrast, as rightly pointed out by the United Kingdom Government, both the causal event (namely the conduct imputed to the employees of Lloyds Bank) and the initial damage (sequestration of the promissory notes and imprisonment) occurred in the United kingdom. Only the alleged consequential damage (financial losses) could have been suffered in Italy.
            
         
               27. 
            
            
               We are thus dealing with a particular situation in which the causal event and the direct harmful consequences are located in a single territory and that initial damage adversely affected the victim's assets in another contracting State.
            
         
               28. 
            
            
               Although the Court has not been called on to settle such a question directly, the basis for an answer is undeniably to be found in its judgments cited above since we are merely faced once more with the distinction — which is of essential importance for the purpose of determining jurisdiction — between the place where the damage arises and the place where it is suffered.
            
         
               29. 
            
            
               The Court regarded as relevant to the determination of the court of competent jurisdiction, in the first of its judgments on the issue, only the damage that had occurred. More clearly still, in Dumez, it displayed its hostility, it seems to me, to the taking into consideration of later financial consequences by referring to ‘the place where the initial damage manifested itself’, (
                     14
                  ) that is to say the place where that damage occurred.
            
         
               30. 
            
            
               Now, to confer jurisdiction on the court in the place where the financial losses were ascertained would be tantamount to disregarding the specificity of the phce of occurrence as the criterion for the conferment of jurisdiction by placing it on the same footing as the place where the damage is suffered.
               
            
         
               31. 
            
            
               That broader approach would thus uphold the forum actoris, since a victim generally suffers harms at the place where he is domiciled. Such a result would be manifesdy contrary to Article 5 of the Convention, which, as the Court has held, is intended to meet the requirements of the proper administration of justice.
            
         
               32. 
            
            
               The spirit of the Convention thus opposes that course. What is more, the solution that I propose is both logical and in conformity with the case-law of the Court.
            
         
               33. 
            
            
               Let us recall in the first place that
               ‘... the “special jurisdictions” enumerated in Articles 5 and 6 of the Convention constitute derogations from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled and as such must be interpreted restrictively’. (
                     15
                  )
            
         
               34. 
            
            
               To allow account to be taken, for the purpose of determining jurisdiction, of the financial damage resulting from initial damage would go in exactly the opposite direction to that objective.
            
         
               35. 
            
            
               But above all, that solution would favour the multiplication of competing courts, whereas the Court emphasized in Effer (
                     16
                  ) that
               ‘the Convention provides a collection of rules which are designed inter alia to avoid the occurrence, in civil and commercial matters, of concurrent litigation in two or more Member States and which, in the interests of legal certainty and for the benefit of the parties, confer jurisdiction upon the national court territorially best qualified to determine a dispute’. (
                     17
                  )
            
         
               36. 
            
            
               That concern to avoid such multiplication, with the danger on the horizon of a ‘fragmentation’ of jurisdiction, was again expressed by the Court in Dumez. It stated
               ‘it is necessary to avoid the multiplication of courts of competent jurisdiction which would heighten the risk of irreconcilable decisions, this being the reason for which recognition of an order for enforcement is withheld by virtue of Article 27(3) of the Convention’. (
                     18
                  )
            
         
               37. 
            
            
               Thus, the solution which I advocate does not impinge upon the Court's judgment in Dumez. On the contrary, it constitutes a natural extension of it.
            
         
               38. 
            
            
               Commenting on that decision, (
                     19
                  ) Mme Gaudemet-Tallon considers that
               ‘The Dumez judgment, by refusing to recognize the jurisdiction of the courts for the domicile of indirect victims, taking account only of the direct damage and using expressions such as “place where the damage occurred”, “place where the initial damage manifested itself” (cf. paragraphs 10, 15, 20 and 21), gives the impression that it is only the courts for the place where the first damage became apparent that can have jurisdiction. Admittedly, here the Court of Justice is considering the case only of an indirect victim, but there is no reason for it to give a different answer regarding damage suffered by a direct victim, which later produces harmful consequences, located in most cases at the place where the victim is domiciled.
               It is not therefore a question of determining where the victim suffers the harm, since the aim pursued by the Convention is not essentially protection of the victim: if it had been, the forum actoris might have been favoured.’ (
                     20
                  )
            
         
               39. 
            
            
               I subscribe fully to that analysis: in fact, I expressed the same view in my Opinion in Dumez. (
                     21
                  )
            
         
               40. 
            
            
               Furthermore, that position is fully supported by most legal writers on the subject.
            
         
               41. 
            
            
               Mr Huet (
                     22
                  ) also expresses the view, albeit in the form of a question, that the scope of the Dumez judgment goes beyond the hypothesis of the ‘ricochet’ victim:
               ‘Does the Court not also mean to say that, where an immediate victim complains of subsequent damage, in particular of a financial nature, resulting from initial damage, only the place where the latter occurred is a basis for recognizing jurisdiction?’ (
                     23
                  )
            
         
               42. 
            
            
               Legal writers in the United Kingdom are also unwilling to accept any attribution of jurisdiction to the court for the place where subsequent financial losses occurred. Thus, according to Mr Collins,
               ‘Even though in one sense a plaintiff may suffer economic loss at the place of its business, that is not sufficient to confer jurisdiction on that place, for otherwise the place of business of the plaintiff would almost automatically become another basis of jurisdiction.’ (
                     24
                  )
            
         
               43. 
            
            
               Mr O'Malley and Mr Leyton likewise consider that:
               ‘It seems in such a case that the economic consequences of the damage should be distinguished from the damage itself (not necessarily an easy task in economic torts) and the location of the estate or person suffering damage by reason of the harmful event is not necessarily the location of the damage.’ (
                     25
                  )
            
         
               44. 
            
            
               There is agreement among German writers — although their view is not in conformity with that taken by the German Government in the present case — in particular Mr Kropholler, (
                     26
                  ) who draws attention to the danger of forum shopping that would arise if precedence were given to the jurisdiction of the courts of the place where the subsequent damage occurs.
            
         
               45. 
            
            
               He says:
               ‘Es spricht viel dafür, den Ort des (weiteren) Schadenseintritts nach erfolgter Rechtsgutverletzung für die Zuständigkeitsbegründung nicht ausreichen zu lassen. Denn sonst würde die Deliktszuständigkeit auf Kosten des in Art. 2 verankerten Grundsatzes des Beklagtenwohnsitzes stark ausgedehnt und einem Klägergerichtsstand angenähert.’ (
                     27
                  )
            
         
               46. 
            
            
               It is also interesting to note that even those writers who interpret Article 5(3) as being based on the idea of protection of the victim (
                     28
                  ) do not in any way suggest that that provision should be extended in the direction of conferring jurisdiction on the courts of the place where subsequent damage occurs. Mr Bourel writes: (
                     29
                  )
               ‘Thus, an analysis of both the legal literature and the case-law shows indisputably that the concept of “place where the harmful event occurs” must be understood, for the purpose of determining the court with delictual jurisdiction, as being the location of the damage immediately suffered by the victim (directly or by ricochet) at the time when the causal event occurs, without account being taken of the repercussions or consequences of that damage, which might have manifested themselves somewhere else, in particular at the place where the plaintiff is domiciled.’ (
                     30
                  )
            
         
               47. 
            
            
               The victim could, in fact, at his option, institute proceedings not only in the courts for the defendant's domicile but also in those for the place where the causative event occurred or those for the place where the damage occurred or again those for the place where the damage was ascertained, which would inevitably encourage forum shopping.
            
         
               48. 
            
            
               I therefore consider that Article 5(3) of the Convention cannot be interpreted so as to enable the victim of financial loss consequent upon initial damage occurring in another contracting State to bring the alleged perpetrator before the courts of the place where that loss was suffered.
            
         
               49. 
            
            
               I therefore suggest that the Court rule as follows:
               Article 5(3) of the Brussels Convention of 27 September 1968 on jurisdiction and enforcement of judgments in civil and commercial matters must be interpreted as not allowing a plaintiff who claims to have suffered financial loss in consequence of initial damage suffered in another contracting State to institute proceedings against the defendant before the courts for the place where that loss was suffered.
            
         (
            *1
         )	Original language: French.
      (
            1
         )	As amended by the Convention of Accession of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1).
      (
            2
         )	Vol. 1, Nozioni introduttive e disposizioni generally Giappichelli Editore, Turin, 1989.
      (
            3
         )	Paragraph 34, p. 182. Free translation: ‘... this procedure(before the Court of Cassation) does not take the matter to a higher level of jurisdiction but merely marks an interlude in the proceedings at first instance. Once that interlude comes to an end, the proceedings revert to their normal course; the decision on jurisdiction is a matter for the court of first instance even though, naturally, that aspect of the judgment is no longer appealable’.
      (
            4
         )	Case C-68/93.
      (
            5
         )	Case C-220/88 [1990] ECR I-49.
      (
            6
         )	Paragraph 11.
      (
            7
         )	Operative part
      (
            8
         )	Recueil Dalloz Sirey, 1977, No 40, p. 614.
      (
            9
         )	La Convention de Bruxelles du 27 septembre 1968 — Compétence judiciaire et effets des jugements dans la CEE, Jupiter, 1985.
      (
            10
         )	Paragraph 89, p. 50.
      (
            11
         )	Operative part.
      (
            12
         )	Case 814/79 [1980] ECR 3807.
      (
            13
         )	P. 3836.
      (
            14
         )	Paragraph 21.
      (
            15
         )	Judgment in Case 189/87 Kalfelis v Schröder [1988] ECR 5565, paragraph 19. Sec also, to the same effect, the judgment in Case C-26/91 Handu [1992] ECR I-3967, paragraph 14.
      (
            16
         )	Case 38/81 Effer v Kantner [1982] ECR 825.
      (
            17
         )	Paragraph 6.
      (
            18
         )	Paragraph 18.
      (
            19
         )	Revue Critique de Droit Internationa! Privé, 1990, p. 367 et seq.
      (
            20
         )	P. 375.
      (
            21
         )	See in particular point 24.
      (
            22
         )	Journal de Droit International, 1990, p. 498 et seq.
      (
            23
         )	P. 501, infine.
      (
            24
         )	The Civil Jurisdiction and Judgments Act 1982, 1983, chapter 4, p. 60.
      (
            25
         )	European Civil Practice, Sweet and Maxwell, 1989, p. 427, 17.50. See also Kaye, P.: Civil Jurisdiction and Enforcement of Foreign Judgments, Professional Books, 1987, in particular at p. 583.
      (
            26
         )	Europäisches Zivilprozeßrecht, Kommentar zum EuGVŪ, Hamburg, 1987.
      (
            27
         )	Article 5, paragraph 45. Free translation: ‘It would be preferable not to consider as relevant, for the purposes of jurisdiction, the place of subsequent damage, occurring after the infringement of the right Otherwise jurisdiction for delictual matters would be considerably extended, contrary to the principle of the domicile of the defendant laid down in Article 2, and would come closer to the jurisdiction of the court of the plaintiff.’
      (
            28
         )	See in that connection the note by P. Bourel on the Court'sjudgment in Mines de Potasse d'Alsace, Revue Critique de Droit International Privé, 1977, pp. 568-576. He writes unhesitatingly (p. 572): ‘All these considerations thus lead to the conclusion that the idea of protection of the victim cannot be eliminated from the debate as being unconnected with the provisions of Article 5(3). I even consider that it provides the only way of resolving the problem of determining the court of the place of the harmful event.’
      (
            29
         )	‘Du rattachement de quelques debts spéciaux en droit international privé’, Recueil des Cours, Académie de Droit International de la Haye, 1989, II, Volume 214 of the collection, p. 251 et seą.
      (
            30
         )	Paragraph 164, p. 386.