Folien Fischer AG and Fofitec AG v Ritrama SpA.
Date: 2012-10-25
24. In that regard, it should be stated that Ritrama seeks to challenge Folien Fischer’s and Fofitec’s interest in pursuing the action in the proceedings before the referring court and contests the relevance of the question referred. However, as the Court has held, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (see Case C-11/07 Eckelkamp and Others  [2008] ECR I-6845, paragraph 32, and Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others  [2011] ECR I-4599, paragraph 47).
25. It should also be stated that, in any event, according to settled case-law, it is solely for the national court to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C-439/08 VEBIC  [2010] ECR I-12471, paragraph 41, and Case C-118/11 Eon Aset Menidjmunt  [2012] ECR, paragraph 76 and the case-law cited).
26. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted (see, inter alia, Joined Cases C-188/10 and C-189/10 Melki and Abdeli  [2010] ECR I-5667, paragraph 27, and Case C-41/11 Inter-Environnement Wallonie and Terre wallonne  [2012] ECR, paragraph 35).
30. First of all, it should be borne in mind that the provisions of Regulation No 44/2001 must be interpreted independently, by reference to the scheme and purpose of that regulation (see, inter alia, Case C-189/08 Zuid-Chemie  [2009] ECR I-6917, paragraph 17 and the case-law cited, and Joined Cases C-509/09 and C-161/10 eDate Advertising and Others [2011] ECR I-10269, paragraph 38).
31. Additionally, in so far as Regulation No 44/2001 replaces, in the relations between Member States, the Brussels Convention, the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent ( Zuid-Chemie , paragraph 18, and eDate Advertising and Others , paragraph 39).
32. The provisions of Regulation No 44/2001 relevant to the present case — namely, point (3) of Article 5(3) and Article 27 — reflect the same system as those of the Brussels Convention and are framed, moreover, in almost identical terms. In the light of the similarity thus established, it is necessary to ensure, in accordance with recital 19 to Regulation No 44/2001, continuity in the interpretation of those two instruments (see Zuid-Chemie , paragraph 19).
33. Secondly, it should be borne in mind that Regulation No 44/2001 pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling the claimant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see, inter alia, Case C-533/07 Falco Privatstiftung and Rabitsch [2009] ECR I-3327, paragraph 22 and the case-law cited, and Case C-327/10 Hypoteční banka  [2011] ECR I-11543, paragraph 44).
37. It is settled case-law that the rule establishing special jurisdiction laid down, by way of derogation from the principle that jurisdiction lies with the courts of the defendant’s place of domicile, in point (3) of Article 5 of Regulation No 44/2001 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 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 (see Zuid-Chemie , paragraph 24, and eDate Advertising and Others , paragraph 40).
38. In matters of tort or delict, the courts of the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on grounds of proximity and ease of taking evidence (see, to that effect, Case C-167/00 Henkel [2002] ECR I-8111, paragraph 46, and Zuid-Chemie , paragraph 24).
39. It should also be noted that the expression ‘place where the harmful event occurred or may occur’ in point (3) of Article 5 of Regulation No 44/2001 is intended to cover both the place where the damage occurred and the place of the event giving rise to that damage and, in consequence, the defendant may be sued, at the option of the applicant, in the courts of either of those places (Case C-523/10 Wintersteiger [2012] ECR, paragraph 19 and the case-law cited).
42. In that regard, it should be noted that the special nature of an action for a negative declaration arises from the fact that the claimant is seeking to establish that the pre-conditions for liability, as a result of which the defendant would have a right of redress, are not satisfied.
45. The objectives, pursued by that provision and repeatedly stressed in case-law (see Case C-292/10 G  [2012] ECR, paragraph 39, and Wintersteiger , paragraph 23), of ensuring that the court with jurisdiction is foreseeable and of preserving legal certainty are not connected either to the allocation of the respective roles of claimant and defendant or to the protection of either.
46. Specifically, point (3) of Article 5 of Regulation No 44/2001 does not pursue the same objective as the rules on jurisdiction laid down in Sections 3 to 5 of Chapter II of that regulation, which are designed to offer the weaker party stronger protection (see Case C-111/09 ČPP Vienna Insurance Group [2010] ECR I-4545, paragraph 30 and the case-law cited).
49. Furthermore, according to paragraph 45 of the judgment in Case C-406/92 Tatry  [1994] ECR I-5439, which concerns the interpretation, inter alia, of Article 21 of the Brussels Convention relating to lis pendens  (now Article 27 of Regulation No 44/2001), an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action as an action brought by that defendant seeking a declaration that he is not liable for that loss.
50. It should further be stated that, during the stage at which jurisdiction is verified, the court seised does not examine either the admissibility or the substance of the application for a negative declaration in the light of national law, but identifies only the points of connection with the State in which that court is sitting, which support its claim to jurisdiction under point (3) of Article 5 of Regulation No 44/2001.
52. If, therefore, the relevant elements in the action for a negative declaration can either show a connection with the State in which the damage occurred or may occur or show a connection with the State in which the causal event giving rise to that damage took place, in accordance with the case-law set out in paragraph 39 above, then the court in one of those two places, as the case may be, can claim jurisdiction to hear such an action, pursuant to point (3) of Article 5 of Regulation No 44/2001, irrespective of whether the action in question has been brought by a party whom a tort or delict may have adversely affected or by a party against whom a claim based on that tort or delict might be made.