Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others.
Date: 1988-09-27
8 The principle laid down in the Convention is that jurisdiction is vested in the courts of the State of the defendant' s domicile and that the jurisdiction provided for in Article 6 ( 1 ) is an exception to that principle . It follows that an exception of that kind must be treated in such a manner that there is no possibility of the very existence of that principle being called in question .
9 That possibility might arise if a plaintiff were at liberty to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of the defendants is domiciled . As is stated in the report prepared by the committee of experts which drafted the Convention ( Official Journal C 59, 5.3.1979, p . 1 ), such a possibility must be excluded . For that purpose, there must be a connection between the claims made against each of the defendants .
12 The rule laid down in Article 6 ( 1 ) therefore applies where the actions brought against the various defendants are related when the proceedings are instituted, that is to say where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings . It is for the national court to verify in each individual case whether that condition is satisfied .
13 It must therefore be stated in reply to the first question that for Article 6 ( 1 ) of the Convention to apply there must exist between various actions brought by the same plaintiff against different defendants a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings .
The second question
15 With respect to the first part of the question, it must be observed that the concept of "matters relating to tort, delict or quasi-delict" serves as a criterion for defining the scope of one of the rules concerning the special jurisdictions available to the plaintiff . As the Court held with respect to the expression "matters relating to a contract" used in Article 5 ( 1 ) ( see the judgments of 22 March 1983 in Case 34/82 Peters v ZNAV (( 1983 )) ECR 987, and of 8 March 1988 in Case 9/87 SPRL Arcado and SA Haviland (( 1988 )) ECR 1539 ), having regard to the objectives and general scheme of the Convention, it is important that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, that concept should not be interpreted simply as referring to the national law of one or other of the States concerned .
16 Accordingly, the concept of matters relating to tort, delict or quasi-delict must be regarded as an autonomous concept which is to be interpreted, for the application of the Convention, principally by reference to the scheme and objectives of the Convention in order to ensure that the latter is given full effect .
17 In order to ensure uniformity in all the Member States, it must be recognized that the concept of "matters relating to tort, delict and quasi-delict" covers all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5 ( 1 ).
18 It must therefore be stated in reply to the first part of the second question that the term "matters relating to tort, delict or quasi-delict" within the meaning of Article 5 ( 3 ) of the Convention must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5 ( 1 ).
19 With respect to the second part of the question, it must be observed, as already indicated above, that the "special jurisdictions" enumerated in Articles 5 and 6 of the Convention constitute derogations from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled and as such must be interpreted restrictively . It must therefore be recognized that a court which has jurisdiction under Article 5 ( 3 ) over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based .
20 Whilst it is true that disadvantages arise from different aspects of the same dispute being adjudicated upon by different courts, it must be pointed out, on the one hand, that a plaintiff is always entitled to bring his action in its entirety before the courts for the domicile of the defendant and, on the other, that Article 22 of the Convention allows the first court seised, in certain circumstances, to hear the case in its entirety provided that there is a connection between the actions brought before the different courts .