Marc Brogsitter v Fabrication de Montres Normandes EURL and Karsten Fräßdorf.
Date: 2014-03-13
18. It should also be pointed out that it is settled case-law that the concepts ‘matters relating to a contract’ and ‘matters relating to tort, delict or quasi-delict’ within the meaning, respectively, of Article 5(1)(a) and (3) of Regulation No 44/2001, must be interpreted independently, by reference to the regulation’s scheme and purpose, in order to ensure that it is applied uniformly in all the Member States (see, inter alia, Case C‑147/12 ÖFAB [2013] ECR, paragraph 27). Those concepts cannot therefore be taken to refer to how the legal relationship in question before the national court is classified by the relevant national law.
19. Furthermore, in so far as Regulation No 44/2001 now replaces, in relationships between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘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 ( ÖFAB , paragraph 28). This applies to Article 5(1)(a) and (3) of the regulation in relation to Article 5(1) and (3) respectively of the Brussels Convention (see, to that effect, ÖFAB , paragraph 29).
20. In that regard, it is apparent from settled case-law that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001 covers all actions which seek to establish the liability of a defendant and which do not concern ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of the regulation (see to that effect, inter alia, Case 189/87 Kalfelis  [1988] ECR 5565, paragraph 17).
21. In order to determine the nature of the civil liability claims brought before the referring court, it is important first to check whether they are, regardless of their classification under national law, contractual in nature (see, to that effect, Case C‑167/00 Henkel  [2002] ECR I‑8111, paragraph 37).
23. However, the mere fact that one contracting party brings a civil liability claim against the other is not sufficient to consider that the claim concerns ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001.
24. That is the case only where the conduct complained of may be considered a breach of contract, which may be established by taking into account the purpose of the contract.
25. That will a priori be the case where the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter.
26. It is therefore for the referring court to determine whether the purpose of the claims brought by the applicant in the case in the main proceedings is to seek damages, the legal basis for which can reasonably be regarded as a breach of the rights and obligations set out in the contract which binds the parties in the main proceedings, which would make its taking into account indispensable in deciding the action.
27. If that is the case, those claims concern ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001. Otherwise, they must be considered as falling under ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001.
28. It should also be noted that, in the first case, jurisdiction in matters relating to a contract is to be determined in accordance with the connecting factors defined in Article 5(1)(b) of Regulation No 44/2001 if the contract at issue in the main proceedings is a contract for the sale of goods or for the supply of services within the meaning of that provision. As provided in Article 5(1)(c) of Regulation No 44/2001, it is in fact only when a contract does not fall within either of those two categories that it is appropriate to determine the competent jurisdiction in accordance with the connecting factor provided for in Article 5(1)(a) of Regulation No 44/2001 (see, to that effect, Case C‑533/07 Falco Privatstiftung and Rabitsch [2009] ECR I‑3327, paragraph 40, and Case C‑9/12 Corman-Collins [2013] ECR, paragraph 42).