Verein für Konsumenteninformation v Karl Heinz Henkel.
Date: 2002-10-01
26 However, it is settled case-law that actions between a public authority and a person governed by private law fall outside the scope of the Brussels Convention only in so far as that authority is acting in the exercise of public powers (see, to that effect, Case 29/76 LTU v Eurocontrol [1976] ECR 1541, paragraph 4; Case 814/79 Rüffer [1980] ECR 3807, paragraph 8, and Case C-172/91 Sonntag [1993] ECR I-1963, paragraph 20).
27 That is the case in a dispute which concerns the recovery of charges payable by a person governed by private law to a national or international body governed by pubic law for the use of equipment and services provided by that body, in particular where such use is obligatory and exclusive (see LTU, cited above, paragraph 4).
28 Similarly, the Court has held that the concept of `civil and commercial matters' within the meaning of the first paragraph of Article 1 of the Brussels Convention does not include actions brought by the State responsible for administering public waterways against a person having liability in law in order to recover the costs incurred in the removal of a wreck carried out by or at the instigation of that administering agent in the exercise of its public authority (Rüffer, cited above, paragraphs 9 and 16).
29 Although it thus follows from the case-law of the Court that certain types of dispute must be regarded as excluded from the scope of the Brussels Convention, by reason either of the legal relationships between the parties to the action or of the subject-matter of the action (see LTU, paragraph 4), the case-law arising from LTU and Rüffer cannot be applied to an action such as that at issue in the main proceedings.
30 Not only is a consumer protection organisation such as the VKI a private body, but in addition, as the German Government correctly observed, the subject-matter of the main proceedings is not an exercise of public powers, since those proceedings do not in any way concern the exercise of powers derogating from the rules of law applicable to relations between private individuals. On the contrary, the action pending before the national court concerns the prohibition on traders' using unfair terms in their contracts with consumers and thus seeks to make relationships governed by private law subject to review by the courts. Hence, an action of that kind is a civil matter within the meaning of the first paragraph of Article 1 of the Brussels Convention.
35 In that regard, the Court has repeatedly held that the concepts of `matters relating to a contract' and `matters relating to tort, delict or quasi-delict' in paragraphs 1 and 3 respectively of Article 5 of the Brussels Convention are to be interpreted independently, having regard primarily to the objectives and general scheme of that convention, in order to ensure that it is both given full effect and applied uniformly in all the Contracting States (see, in particular, Case 34/82 Peters [1983] ECR 987, paragraphs 9 and 10; Case 189/87 Kalfelis [1988] ECR 5565, paragraphs 15 and 16, and Case C-261/90 Reichert and Kockler [1992] ECR I-2149, paragraph 15).
36 It is also settled case-law that the concept of matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Brussels Convention covers all actions which seek to establish the liability of a defendant and are not matters relating to a contract within the meaning of Article 5(1) of that convention (see, in particular, Kalfelis, cited above, paragraph 17; Reichert and Kockler, cited above, paragraph 16; Case C-51/97 Réunion Européenne and Others [1998] ECR I-6511, paragraph 22, and Case C-96/00 Gabriel [2002] ECR I-0000, paragraph 33).
37 It is therefore necessary in the first instance to examine whether an action such as that at issue in the main proceedings is contractual in nature.
42 The concept of  `harmful event' within the meaning of Article 5(3) of the Brussels Convention is broad in scope (Case 21/76 Bier (`Mines de Potasse d'Alsace') [1976] ECR 1735, paragraph 18) so that, with regard to consumer protection, it covers not only situations where an individual has personally sustained damage but also, in particular, the undermining of legal stability by the use of unfair terms which it is the task of associations such as the VKI to prevent.
43 Furthermore, that is the only interpretation consistent with the purpose of Article 7 of Directive 93/13. Accordingly, the efficacy of the actions under that provision to prevent the continued use of unlawful terms would be considerably diminished if those actions could be brought only in the State where the trader is domiciled.
44 Mr Henkel and the French Government have, however, submitted that Article 5(3) of the Brussels Convention refers to the place where the harmful event occurred and therefore presupposes, according to its actual terms, the existence of damage. They argue that the same conclusion is dictated by the Court's interpretation of that provision, according to which the expression `place where the harmful event occurred' must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to that damage, so that the defendant may be sued, at the option of the plaintiff, in the courts for either of those places (see, in particular, Mines de Potasse d'Alsace, cited above, paragraphs 24 and 25; Case C-220/88 Dumez France and Tracoba [1990] ECR I-49, paragraph 10; Case C-68/93 Shevill and Others [1995] ECR I-415, paragraph 20, and Case C-364/93 Marinari [1995] ECR I-2719, paragraph 11). In their submission, it follows that Article 5(3) of the Brussels Convention cannot be applied to purely preventive actions which are brought before any actual damage has occurred and are intended to prevent the occurrence of a future harmful event.
46 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 a dispute and the courts for 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, paragraphs 11 and 17; Dumez France and Tracoba, paragraph 17; Shevill and Others, paragraph 19, and Marinari, 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. Those considerations are equally relevant whether the dispute concerns compensation for damage which has already occurred or relates to an action seeking to prevent the occurrence of damage.
48 It is therefore not possible to accept an interpretation of Article 5(3) of the Brussels Convention according to which application of that provision is conditional on the actual occurrence of damage. Furthermore, it would be inconsistent to require that an action to prevent behaviour considered to be unlawful, such as that brought in the main proceedings, whose principal aim is precisely to prevent damage, may be brought only after that damage has occurred.
49 Finally, Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), while not applicable ratione temporis to the main proceedings, is such as to confirm the interpretation that Article 5(3) of the Brussels Convention does not presuppose the existence of damage. That regulation clarified the wording of Article 5(3) of the Brussels Convention that the new version of that provision resulting from that regulation refers to `the place where the harmful event occurred or may occur'. In the absence of any reason for interpreting the two provisions in question differently, consistency requires that Article 5(3) of the Brussels Convention be given a scope identical to that of the equivalent provision of Regulation No 44/2001. This is all the more necessary given that that regulation is intended to replace the Brussels Convention in relations between Member States with the exception of the Kingdom of Denmark, with that convention continuing to apply between the Kingdom of Denmark and the Member States bound by that regulation.
50 In the light of all the foregoing considerations, the answer to the question referred by the national court must be that the rules on jurisdiction laid down in the Brussels Convention must be interpreted as meaning that a preventive action brought by a consumer protection organisation for the purpose of preventing a trader from using terms considered to be unfair in contracts with private individuals is a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3) of that convention.