Saey Home & Garden NV/SA v Lusavouga-Máquinas e Acessórios Industriais SA.
Date: 2018-03-08
18


In that regard, it should be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court, are not satisfied or where it is quite obvious that the interpretation of a provision of European Union law, or the assessment of its validity, which is sought by the national court bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 50 and 155 and the case-law cited).
19


According to settled case-law, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 43 and the case-law cited).
24


The Court has consistently held in this regard that the provisions of Article 25 of Regulation No 1215/2012 must be strictly interpreted in so far as they exclude both jurisdiction as determined by the general principle of the defendant’s courts laid down in Article 4 thereof and the special jurisdictions provided for in Articles 7 to 9 thereof (see, to that effect, judgment of 28 June 2017, Leventis and Vafeias, C‑436/16, EU:C:2017:497, paragraph 39 and the case-law cited).
25


More specifically, the court before which the matter is brought has the duty of examining, in limine litis, whether the jurisdiction clause was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, the purpose of the requirements as to form imposed by Article 25(1) of Regulation No 1215/2012 being, in that regard, to ensure that consensus between the parties is in fact established (see, to that effect, judgment of 28 June 2017, Leventis and Vafeias, C‑436/16, EU:C:2017:497, paragraph 34 and the case-law cited).
27


Moreover, it must be observed that where a jurisdiction clause is stipulated in the general conditions, the Court has already held that such a clause is lawful where the text of the contract signed by both parties itself contains an express reference to general conditions which include a jurisdiction clause (judgment of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraph 39 and the case-law cited).
30


Furthermore, it is common ground, according to the referring court, that the subject matter of the dispute at issue in the main proceedings concerns a commercial concession agreement for which compensation is sought for loss arising from the premature and sudden termination together with a good will indemnity for failing to observe the related requirement of semi-exclusivity. Therefore, it is important to verify, which is also a matter for the referring court, whether the jurisdiction clause at issue in the main proceedings concerns that legal relationship. In principle, a jurisdiction clause may produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (judgment of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 29).
34


First of all, it should be pointed out that the connecting factors for determining the court with jurisdiction that are laid down in Article 7(1)(b) of Regulation No 1215/2012 are applicable only in so far as the national court hearing the dispute which has arisen between the parties that entered into a long-standing business relationship with each other comes to the conclusion that that relationship is founded on a ‘contract for the sale of goods’ or a ‘contract for the provision of services’, for the purposes of that provision. Such a classification would exclude the application of the rule of jurisdiction laid down in Article 7(1)(a) thereof. In view of the hierarchy which Article 5(1)(c) establishes between Article 5(1)(a) and (b), the rule of jurisdiction laid down in Article 5(1)(a) is intended to apply only in the alternative and if the rules of jurisdiction in Article 5(1)(b) do not apply (see, to that effect, judgment of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraphs 30 and 31 and the case-law cited).
36


For that purpose, it is necessary to take the obligation which characterises the contract as the connecting factor for determining the competent court (see, to that effect, judgments of 25 February 2010, Car Trim, C‑381/08, EU:C:2010:90, paragraphs 31 and 32, and of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraph 40 and the case-law cited).
37


Thus, a contract which has as its characteristic obligation the supply of a good will be classified as a ‘sale of goods’ within the meaning of the first indent of Article 7(1)(b), first indent, of Regulation No 1215/2012, (see, to that effect, judgment of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 34 and the case-law cited).
38


As to whether a contract may be classified as a ‘contract for the supply of services’, within the meaning of Article 7(1)(b), second indent, of Regulation No 1215/2012, it must be recalled that the concept of ‘services’ implies, at the least, that the party who provides the service carries out a particular activity in return for remuneration (see, to that effect, judgment of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraph 35 and the case-law cited).
39


As regards the criterion relating to the existence of an activity, it is clear from the case-law of the Court that it requires the performance of positive acts, rather than mere omissions. That criterion corresponds, in the case of a concession agreement, to the characteristic service provided by the concessionaire which, by distributing the products of the grantor of the concession, is involved in increasing their distribution. As a result of the supply guarantee it enjoys under the concession agreement and, as the case may be, its involvement in the grantor’s commercial planning, in particular with respect to marketing operations, factors in respect of which the national court has jurisdiction to make a ruling, the concessionaire is able to offer clients services and benefits that a mere reseller cannot and thereby acquire, for the benefit of the grantor’s products, a larger share of the local market (see, to that effect, judgment of 19 December 2013, Corman-Collins, C‑9/12, EU:C:2013:860, paragraph 38 and the case-law cited).
40


As to the criterion of the remuneration provided as consideration for an activity, it must be pointed out that it cannot be understood in the strict sense of the payment of a sum of money. Account must be taken, first, of the competitive advantage conferred on the concessionaire by the benefit, by virtue of the contract concluded between the parties, of an exclusive or semi-exclusive right to sell the grantor’s products in a particular territory and, second, assistance provided to the concessionaire regarding access to advertising, communicating know-how by means of training or yet even payment facilities, all of which represent an economic value for the concessionaire that may be regarded as constituting remuneration (see, to that effect, judgment of 19 December 2013, Corman-Collins, C‑9/12, EU:C:2013:860, paragraphs 39 and 40).
41


The Court has already held that, for the purposes of determining jurisdiction, an exclusive or semi-exclusive concession agreement falls, in principle, with the definition of ‘contract for the supply of services’ (see, to that effect, judgment of 19 December 2013, Corman-Collins, C‑9/12, EU:C:2013:860, paragraphs 27, 28 and 41).
44


It follows from the case-law of the Court that, when there are several places of performance of the obligation characteristic of a contract for the supply of services the ‘place of performance’ within the meaning of Article 7(1)(b), second indent, of Regulation No 1215/2012 must be understood as the place with the closest linking factor, which, as a general rule, will be at the place of the main provision of services (see, to that effect, judgment of 11 March 2010, Wood Floor Solutions Andreas Domberger, C‑19/09, EU:C:2010:137, paragraphs 33 and 34).
45


Therefore, under that provision, the court with jurisdiction to hear claims based on a contract for the supply of services in the case of the supply of services in several Member States is the court of the Member State of the place of the main provision of services, as it follows from the provisions of the contract and, in the absence of such provision, of the actual performance of that contract and, where it cannot be determined on that basis, the place where the agent is domiciled (see, to that effect, judgment of 11 March 2010, Wood Floor Solutions Andreas Domberger, C‑19/09, EU:C:2010:137, paragraph 43).
46


That interpretation, which must also apply in circumstances such as those at issue in the main proceedings, which respects the objectives of predictability and proximity pursued by the EU legislature (see, to that effect, judgments of 25 February 2010, Car Trim, C‑381/08, EU:C:2010:90, paragraph 48 and the case-law cited, and of 11 March 2010, Wood Floor Solutions Andreas Domberger, C‑19/09, EU:C:2010:137, paragraphs 41 and 42).