Universal Music International Holding BV v Michael Tétreault Schilling and Others.
Date: 2016-06-16
22


In order to answer that question, it should be noted that, inasmuch as Regulation No 44/2001 replaces the Brussels Convention, the interpretation provided by the Court in respect of the provisions of that convention is valid also for those of that regulation, whenever the provisions of those Union instruments may be regarded as equivalent (judgments of 16 July 2009 in Zuid-Chemie, C‑189/08, EU:C:2009:475, paragraph 18, and of 10 September 2015 in Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 38).
23


It should be observed that the provisions of Regulation No 44/2001 relevant to the present case are drafted in nearly identical terms to those of the Brussels Convention. In the light of such similarity, it is necessary to ensure, in accordance with recital 19 in the preamble to Regulation No 44/2001, continuity in the interpretation of those two instruments (see, inter alia, judgment in Zuid-Chemie, C‑189/08, EU:C:2009:475, paragraph 19).
24


According to the Court’s case-law, the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001 covers all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of that regulation (see judgment in Kolassa, C‑375/13, EU:C:2015:37, paragraph 44). In that regard, failing any evidence in the order for reference tending to show that a contractual relationship existed between the parties in the main proceedings, which it is nevertheless a matter for the referring court to verify, the Court must restrict its analysis to Article 5(3) of Regulation No 44/2001, to which the questions referred by the national court relate.
25


As the Advocate General noted at point 27 of his Opinion, it is only by way of derogation from the general principle laid down in Article 2(1) of Regulation No 44/2001, attributing jurisdiction to the courts of the Member State in which the defendant is domiciled, that Section 2 of Chapter II of that regulation makes provision for certain special jurisdictional rules, such as the rule laid down in Article 5(3) of that regulation. Insofar as the jurisdiction of the courts for the place where the harmful event occurred constitutes a rule of special jurisdiction, it must be interpreted independently and strictly, which does not permit an interpretation going beyond the cases expressly envisaged by that regulation (see, to that effect, judgments of 5 June 2014 in Coty Germany, C‑360/12, EU:C:2014:1318, paragraphs 43 to 45, and of 10 September 2015 in Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraphs 72 and case-law cited).
26


According to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of that regulation is based on the existence of a particularly close connecting factor between the dispute and the courts for the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (judgments of 5 June 2014 in Coty Germany, C‑360/12, EU:C:2014:1318, paragraphs 47, and of 10 September 2015 in Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 73 and case-law cited).
27


In matters relating to tort, delict or quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity of the dispute and ease of taking evidence (judgments of 21 May 2015 in CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 40, and of 10 September 2015 in Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 74).
28


As for the notion of ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001, as the Court has already held, those words are intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (see in relation to pollution, judgment of 30 November 1976 in Bier, 21/76, EU:C:1976:166, paragraphs 24 and 25; in relation to counterfeiting, judgment of 5 June 2014 in Coty Germany, C‑360/12, EU:C:2014:1318, paragraphs 46; in relation to company directors’ contracts, judgment of 10 September 2015 in Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 72).
34


In that context, it should be noted that the term ‘place where the harmful event occurred’ may not be construed so extensively as to encompass any place where the adverse consequences of an event, which has already caused damage actually arising elsewhere, can be felt (judgment of 19 September 1995 in Marinari, C‑364/93, EU:C:1995:289, paragraph 14).
35


In the wake of that case-law, the Court has also held that that expression does not refer to the place where the applicant is domiciled and where his assets are concentrated by reason only of the fact that he has suffered financial damage there resulting from the loss of part of his assets which arose and was incurred in another Member State (judgment of 10 June 2004 in Kronhofer, C‑168/02, EU:C:2004:364, paragraph 21).
37


However, as the Advocate General stated in essence in points 44 and 45 of his Opinion in the present case, that finding is made within the specific context of the case which gave rise to that judgment, a distinctive feature of which was the existence of circumstances contributing to attributing jurisdiction to those courts.
40


In the light of the foregoing considerations, the answer to the first question is that Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that, in a situation such as that in the main proceedings, the ‘place where the harmful event occurred’ may not be construed as being, failing any other connecting factors, the place in a Member State where the damage occurred, when that damage consists exclusively of financial damage which materialises directly in the bank account of the applicant and is the direct result of an unlawful act committed in another Member State.
44


In the particular context of Article 5(3) of Regulation No 44/2001, the Court has held that, at the stage at which jurisdiction is determined, the court seised does not examine either the admissibility or the substance of the application in the light of national law, but identifies only those points of connection with the State in which that court is sitting that support its claim to jurisdiction under that provision. Thus, the court seised may regard as established, solely for the purpose of ascertaining whether it has jurisdiction under that provision, the applicant’s claims as regards the conditions for liability in tort, delict or quasi-delict (see, to that effect, judgments of 25 October 2012 in Folien Fischer and Fofitec, C‑133/11, EU:C:2012:664, paragraph 50, and of 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 62 and case-law cited).
45


Although the national court seised is not obliged, if the defendant contests the applicant’s claims, to conduct a comprehensive taking of evidence at the stage of determining jurisdiction, the Court has held that both the objective of the sound administration of justice, which underlies Regulation No 44/2001, and respect for the independence of the national court in the exercise of its functions require the national court seised to be able to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the defendant’s arguments (judgement of 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 64).