Zuid-Chemie BV v Philippo's Mineralenfabriek NV/SA.
Date: 2009-07-16
17. In order to answer that question, it should be borne in mind, first, that, according to settled case-law, the provisions of Regulation No 44/2001 must be interpreted independently, by reference to its scheme and purpose (see, inter alia, Case C‑372/07 Hassett and Doherty  [2008] ECR I-0000, paragraph 17, and Case C‑167/08 Draka NK Cables and Others  [2009] ECR I-0000, paragraph 19).
18. Second, in so far as Regulation No 44/2001 now replaces, in the relations between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of Regulation No 44/2001 whenever the provisions of those Community instruments may be regarded as equivalent.
19. The provisions of Regulation No 44/2001 relevant to this case reflect the same system as those of the Brussels Convention and are, moreover, drafted in almost identical terms. 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 Draka NK Cables and Others , paragraph 20, and Case C-180/06 Ilsinger  [2009] ECR I-0000, paragraph 58).
20. Thus, it is necessary to bear in mind that the Court has already held, when interpreting Article 5(3) of the Brussels Convention, that the system of common rules of conferment of jurisdiction laid down in Title II of that convention is based on the general rule, set out in the first paragraph of Article 2, that persons domiciled in a Contracting State are to be sued in the courts of that State, irrespective of the nationality of the parties (Case C-168/02 Kronhofer  [2004] ECR I-6009, paragraph 12).
21. It is only by way of derogation from that fundamental principle attributing jurisdiction to the courts of the defendant’s domicile that Section 2 of Title II of the Brussels Convention makes provision for certain special jurisdictional rules, such as that laid down in Article 5(3) of the Convention ( Kronhofer , paragraph 13).
22. The Court has also held that those rules of special jurisdiction must be interpreted restrictively and cannot give rise to an interpretation going beyond the cases expressly envisaged by that convention (see Case 189/87 Kalfelis  [1988] ECR 5565, paragraph 19; Case C-433/01 Blijdenstein  [2004] ECR I‑981, paragraph 25; and Kronhofer , paragraph 14).
23. Nevertheless, it is settled case-law that, where the place in which the event which may give rise to liability in tort, delict or quasi-delict occurs and the place where that event results in damage are not identical, the expression ‘place where the harmful event occurred’ in Article 5(3) of the Brussels Convention 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, so that the defendant may be sued, at the option of the claimant, in the courts for either of those places (see, inter alia, Case 21/76 Bier  (‘ Mines de potasse d’Alsace) ’ [1976] ECR 1735, paragraphs 24 and 25; Case C-167/00 Henkel [2002] ECR I‑8111, paragraph 44 ; Case C-18/02 DFDS Torline  [2004] ECR I‑1417, paragraph 40; and Kronhofer , paragraph 16).
24. In that connection, the Court has stated that the rule of special jurisdiction laid down in Article 5(3) of the Brussels Convention is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see to that effect, inter alia, Mines de Potasse d'Alsace , paragraph 11; Case C-220/88 Dumez France and Tracoba  [1990] ECR I‑49, paragraph 17; Case C-68/93 Shevill and Others  [1995] ECR I‑415, paragraph 19; and Case C-364/93 Marinari [1995] ECR I-2719, paragraph 10). The courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (see Henkel , paragraph 46).
26. The place where the damage occurred is, according to the case-law cited in paragraph 23 of the present judgment, the place where the event which may give rise to liability in tort, delict or quasi-delict resulted in damage.
27. The place where the damage occurred must not, however, be confused with the place where the event which damaged the product itself occurred, the latter being the place of the event giving rise to the damage. By contrast, the ‘place where the damage occurred’ (see Mines de potasse d'Alsace , paragraph 15, and Shevill and Others , paragraph 21) is the place where the event which gave rise to the damage produces its harmful effects, that is to say, the place where the damage caused by the defective product actually manifests itself.
28. It must be recalled that the case-law distinguishes clearly between the damage and the event which is the cause of that damage, stating, in that connection, that liability in tort, delict or quasi-delict can arise only on condition that a causal connection can be established between those two elements (see Mines de potasse d'Alsace , paragraph 16).
30. It must also be observed that the choice of the Netherlands courts which is thereby available to Zuid-Chemie makes it possible, in particular for the reasons laid down in paragraph 24 of the present judgment, for the court which is most appropriate to deal with the case and, therefore, enables the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001 to have practical effect.
31. In that connection, it is worth pointing out that the Court has held, by its interpretation of Article 5(3) of the Brussels Convention to the effect that that provision covers not only the place of the event giving rise to the damage, but also the place where the damage occurred, and that to decide in favour only of the place of the event giving rise to the damage would, in a significant number of cases, cause confusion between the heads of jurisdiction laid down by Articles 2 and 5(3) of that convention, with the result that the latter provision would, to that extent, lose its effectiveness (see Mines de potasse d'Alsace , paragraphs 15 and 20, and Shevill and Others , paragraph 22). Such a consideration relating to confusion between the heads of jurisdiction is likely to apply in the same way with regard to the failure to take account, where appropriate, of a place where damage occurred which differs from the place of the event which gave rise to that damage.
36. Taking account of that finding, and in the light of the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (Case C-62/06 ZF Zefeser  [2007] ECR I-11995, paragraph 15), there is no need to reply to the second question.
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