Profit Investment SIM SpA v Stefano Ossi and Others.
Date: 2016-04-20
23


As a preliminary point, it must be stated that, as regards the conditions for the validity of a jurisdiction clause, Article 23(1) of Regulation No 44/2001 sets out in substance the formal requirements and mentions only one substantive condition relating to the subject-matter of the clause, which must concern a particular legal relationship. Therefore, the wording of that provision does not indicate whether a jurisdiction clause may be transmitted, beyond the circle of the parties to a contract, to a third party, who is a party to a subsequent contract and successor, in whole or in part, to the rights and obligations of one of the parties to the initial contract (see, inter alia, judgment of 7 February 2013 in Refcomp, C‑543/10, EU:C:2013:62, paragraph 25).
24


However, Article 23(1) of Regulation No 44/2001 clearly indicates that its scope is limited to cases in which the parties have ‘agreed’ on a court. As appears from recital 11 of that regulation, it is that consensus between the parties which justifies the primacy granted, in the name of the principle of the freedom of choice, to the choice of a court other than that which may have had jurisdiction under that regulation (judgment in Refcomp, C‑543/10, EU:C:2013:62, paragraph 26).
26


The Court has already held that that requirement is not fulfilled where a jurisdiction clause is included among the general conditions of sale of one of the parties, printed on the back of a contract, unless the contract contains an express reference to those general conditions (judgment of 14 December 1976 in Estasis Saloti di Colzani, 24/76, EU:C:1976:177, paragraph 10).
27


In addition, according to settled case-law, Article 23(1) of Regulation No 44/2001 must be interpreted as meaning that, like the aim pursued by the first paragraph of Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, ensuring the real consent of the parties is one of the aims of that provision (see, inter alia, judgment of 7 February 2013 in Refcomp, C‑543/10, EU:C:2013:62, paragraph 28 and case-law cited) and that, consequently, that provision imposes on the court before which the matter is brought the duty of examining whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated (see, inter alia, judgments of 9 November 2000 in Coreck, C‑387/98, EU:C:2000:606, paragraph 13 and the case-law cited, and of 7 February 2013 in Refcomp, C‑543/10, EU:C:2013:62, paragraph 27).
33


However, adjudicating on matters relating to maritime transport contracts, the Court acknowledged that a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to that contract if that clause has been adjudged valid between the carrier and the shipper and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations. It is as a result of that relationship of substitution between the shipper and the third party holder of the bill of lading that, by acquiring that bill, the third party holder is bound by the jurisdiction clause. If there is, under national law, such a relationship, there is no need for the court hearing the case to ascertain whether that third party accepted that jurisdiction clause. In that respect, the Court has emphasised the very specific nature of bills of lading, which are instruments of international commerce intended to govern a relationship involving at least three persons. Thus, the bill of lading is a negotiable instrument which allows the owner to transfer the goods, en route, to a purchaser who becomes the holder of all the rights and obligations of the shipper in relation to the carrier (see, to that effect, judgments of 19 June 1984 in Russ, 71/83, EU:C:1984:217, paragraph 24; of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 41; of 9 November 2000 in Coreck, C‑387/98, EU:C:2000:606, paragraphs 23 to 27, and of 7 February 2013 in Refcomp, C‑543/10, EU:C:2013:62, paragraphs 34 to 36).
34


Furthermore, the Court has also held, in relation to a subscription for shares in a company, that, by becoming a shareholder, the shareholder agrees to be subject to all the provisions appearing in the statutes of the company, including a clause conferring jurisdiction contained in those statutes, and is bound by that clause, provided that the statutes are lodged in a place to which the shareholder may have access, such as the seat of the company, or are contained in a public register (see, to that effect, judgment of 10 March 1992 in Powell Duffryn, C‑214/89, EU:C:1992:115, paragraphs 19 and 28).
39


It follows from the case-law that one of the aims pursued by Article 23(1)(c) of Regulation No 44/2001 is to ensure that there is real consent on the part of the persons concerned, so as to avoid jurisdiction clauses, incorporated in a contract by one party, going unnoticed (see, to that effect, judgments of 20 February 1997 in MSG, C‑106/95, EU:C:1997:70, paragraph 17, and of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 19).
40


The Court has added, however, that Article 23(1)(c) makes it possible to presume that such consent exists where commercial usages of which the parties are or ought to have been aware exist in this regard in the relevant branch of international trade or commerce (see, to that effect, judgments of 20 February 1997 in MSG, C‑106/95, EU:C:1997:70, paragraph 19, and of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraphs 20 and 21).
41


In that respect, the Court has indicated that it is for the national court to determine whether the contract in question comes under the head of international trade or commerce and to find whether there was a practice in the branch of international trade or commerce in which the parties are operating and whether they were aware or are presumed to have been aware of that practice. The Court should nevertheless indicate the objective factors needed in order to make such a determination (see, to that effect, judgments of 20 February 1997 in MSG, C‑106/95, EU:C:1997:70, paragraph 21, and of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 23).
43


As to the second point, the Court has already explained that whether a usage exists is not to be determined by reference to the law of one of the Contracting Parties or in relation to international trade or commerce in general, but in relation to the branch of trade or commerce in which the parties to the contract operate (judgments of 20 February 1997 in MSG, C‑106/95, EU:C:1997:70, paragraph 23, and of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 25).
44


The Court has added that there is a usage in the branch of trade or commerce in question where, in particular, a certain course of conduct is generally and regularly followed by operators in that branch when concluding contracts of a particular type (judgments of 20 February 1997 in MSG, C‑106/95, EU:C:1997:70, paragraph 23, and of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 26).
45


The Court has therefore concluded that it is not necessary for such a course of conduct to be established in specific countries or, in particular, in all the Contracting States. The fact that a practice is generally and regularly observed by operators in countries which play a prominent role in the branch of international trade or commerce in question can be evidence which helps to prove that a usage exists. The determining factor remains, however, whether the course of conduct in question is generally and regularly followed by operators in the branch of international trade or commerce in which the parties to the contract operate (judgment of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 27).
46


In that respect, the Court has also stated that since Article 23 of Regulation No 44/2001 does not contain any reference to forms of publicity, it must be held that, although any publicity which might be given in associations or specialised bodies to the standard forms on which a jurisdiction clause appears may help to prove that a practice is generally and regularly followed, such publicity cannot be a requirement for establishing the existence of a usage (judgment of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 28).
47


Moreover, a course of conduct satisfying the conditions indicative of a usage does not cease to be a usage because it is challenged before the courts, whatever the extent of the challenges, provided that it still continues to be generally and regularly followed in the trade with which the type of contract in question is concerned (see, to that effect, judgment of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 29).
48


It follows from the case-law that actual or presumed awareness of a usage on the part of the parties may be made out, in particular, by showing either that the parties had previously had commercial or trade relations between themselves or with other parties operating in the sector in question, or that, in that sector, a particular course of conduct is sufficiently well known because it is generally and regularly followed when a particular type of contract is concluded, so that it may be regarded as being an established practice (judgments of 20 February 1997 in MSG, C‑106/95, EU:C:1997:70, paragraph 24, and of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraph 43).
53


In order to answer that question, it must be recalled at the outset that the concept of ‘matters relating to a contract’, within the meaning of that provision, cannot be taken to refer to the classification under the relevant national law of the legal relationship in question before the national court. That concept must, on the contrary, be interpreted independently, regard being had to the general scheme and objectives of Regulation No 44/2001, in order to ensure that it is applied uniformly in all the Member States (judgments of 17 June 1992 in Handte, C‑26/91, EU:C:1992:268, paragraph 10; of 14 March 2013 in Česká spořitelna, C‑419/11, EU:C:2013:165, paragraph 45, and of 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 37).
61


As regards its purpose, the rule of jurisdiction in Article 6(1) of Regulation No 44/2001 meets, in accordance with recitals 12 and 15 of that regulation, the wish to facilitate the sound administration of justice, to minimise the possibility of concurrent proceedings and thus to avoid irreconcilable outcomes if cases are decided separately (see, inter alia, judgments of 1 December 2011 in Painer, C‑145/10, EU:C:2011:798, paragraph 77, and of 12 July 2012 in Solvay, C‑616/10, EU:C:2012:445, paragraph 19).
62


Moreover, that special rule of jurisdiction must be interpreted in the light, first, of recital 11 of Regulation No 44/2001, according to which the 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 connecting factor (see, inter alia, judgments of 11 October 2007 in Freeport, C‑98/06, EU:C:2007:595, paragraph 36, and of 12 July 2012 in Solvay, C‑616/10, EU:C:2012:445, paragraph 20).
63


That special rule of jurisdiction, because it derogates from the principle stated in Article 2 of Regulation No 44/2001 that jurisdiction be based on the defendant’s domicile, must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by that regulation (see, inter alia, judgments of 1 December 2011 in Painer, C‑145/10, EU:C:2011:798, paragraph 74 and the case-law cited, and of 12 July 2012 in Solvay, C‑616/10, EU:C:2012:445, paragraph 21).
64


Furthermore, the Court has held that it is for the national court to assess whether there is a connection between the different claims brought before it, that is to say, a risk of irreconcilable judgments if those claims were determined separately and, in that regard, to take account of all the necessary factors in the case-file (see, inter alia, judgments of 11 October 2007 in Freeport, C‑98/06, EU:C:2007:595, paragraph 41; of 1 December 2011 in Painer, C‑145/10, EU:C:2011:798, paragraph 83, and of 12 July 2012 in Solvay, C‑616/10, EU:C:2012:445, paragraph 23).
65


The Court has however stated in this connection that, in order for judgments to be regarded as at risk of being irreconcilable within the meaning of Article 6(1) of Regulation No 44/2001, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the same situation of fact and law (see, inter alia, judgments of 13 July 2006 in Roche Nederland and Others, C‑539/03, EU:C:2006:458, paragraph 26; of 11 October 2007 in Freeport, C‑98/06, EU:C:2007:595, paragraph 40; of 1 December 2011 in Painer, C‑145/10, EU:C:2011:798, paragraph 79, and of 12 July 2012 in Solvay, C‑616/10, EU:C:2012:445, paragraph 24).