Antonio Marinari v Lloyds Bank plc and Zubaidi Trading Company.
Date: 1995-09-19
6 It observes that, in Case 21/76 Bier v Mines de Potasse d' Alsace [1976] ECR 1735, the Court considered that the term "place where the harmful event occurred" was to be understood as intended to cover both the place where the damage occurred and the place of the event giving rise to it, and that Mr Marinari contends that the expression "damage occurred" relates not only to the physical result but also to damage in the legal sense, such as a decrease in a person' s assets.
7 It also notes that in Case C-220/88 Dumez France and Tracoba v Hessische Landesbank [1990] ECR I-49, the Court held that account should not be taken, for the purpose of determining jurisdiction under Article 5(3) of the Convention, of indirect financial damage. The national court, in those circumstances, questions whether that also applies where the harmful effects alleged by the plaintiff are direct, not indirect.
8 In those circumstances, it decided to stay the proceedings pending a preliminary ruling on the following question:
"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 Handelskwekerij G.J. Bier BV v Mines de Potasse d' Alsace SA [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?"
10 As the Court has held on several occasions (in Mines de Potasse d' Alsace, cited above, paragraph 11, Dumez France and Tracoba, cited above, paragraph 17, and Case C-68/93 Shevill and Others v Presse Alliance [1995] ECR I-415, paragraph 19), that rule of special jurisdiction, the choice of which is a matter for the plaintiff, is based on the existence of a particularly close connecting factor between the dispute and courts other than those of the State of the defendant' s domicile which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings.
11 In Mines de Potasse d' Alsace (paragraphs 24 and 25) and Shevill (paragraph 20), 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" in Article 5(3) of the 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 plaintiff, in the courts for either of those places.
13 The choice thus available to the plaintiff cannot however be extended beyond the particular circumstances which justify it. Such extension would negate the general principle laid down in the first paragraph of Article 2 of the Convention that the courts of the Contracting State where the defendant is domiciled are to have jurisdiction. It would lead, in cases other than those expressly provided for, to recognition of the jurisdiction of the courts of the plaintiff' s domicile, a solution which the Convention does not favour since, in the second paragraph of Article 3, it excludes application of national provisions which make such jurisdiction available for proceedings against defendants domiciled in the territory of a Contracting State.
14 Whilst it has thus been recognized that the term "place where the harmful event occurred" within the meaning of Article 5(3) of the Convention may cover both the place where the damage occurred and the place of the event giving rise to it, that term cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere.
19 There is no basis for interpreting Article 5(3) of the Convention by reference to the applicable rules on non-contractual civil liability, as proposed by the German Government. That interpretation is also incompatible with the objective of the Convention, which is to provide for a clear and certain attribution of jurisdiction (see Case 241/83 Roesler v Rottwinkel [1985] ECR 99, paragraph 23, and Case C-26/91 Handte v Traitments Mécano-Chimiques des Surfaces [1992] ECR II-3967, paragraph 19). The delimitation of jurisdiction would then depend on uncertain factors such as the place where the victim' s assets suffered subsequent damage and the applicable rules on civil liability.