Brite Strike Technologies Inc. v Brite Strike Technologies SA.
Date: 2016-07-14
51


It follows that the relationship between the rules of jurisdiction laid down by Regulation No 44/2001 and those contained in certain conventions concluded between Member States was governed, in favour of those conventions, by Article 71 of Regulation No 44/2001. However, that provision did not enable the Member States, by concluding new specialised conventions or amending conventions already in force, to introduce rules which would prevail over those of that regulation (judgment of 4 May 2010 in TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraph 38).
52


In that context, it must be recalled that Article 71 of Regulation No 44/2001 replaced Article 57 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36) which, with regard to conventions on specific matters, refers to conventions to which the Member States ‘are or will be’ parties. By the use of the words ‘or will be’, Article 57 of the Brussels Convention made it clear that the rules contained therein did not preclude the application of different rules to which the Contracting States would agree in the future through the conclusion of specialised conventions. Those words were not reproduced in Article 71(1) of Regulation No 44/2001 (judgment of 4 May 2010 in TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraphs 37 and 38).
53


The limitation on the scope of Article 71 of Regulation No 44/2001, set out in paragraph 51 of the present judgment, reflects the settled case-law stating that, as and when common rules come into being, the Member States no longer have the right to conclude international agreements affecting those rules (judgment of 4 May 2010 in TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraph 38).
54


That limitation also applies with respect to the conclusion by the Member States of agreements between themselves. In the light of the primacy enjoyed as a general rule by EU law with regard to conventions concluded between the Member States (see, in particular, judgment of 27 September 1988 in Matteucci, 235/87, EU:C:1988:460, paragraph 22 and the case-law cited), the conclusion between the Member States of conventions affecting the common rules of the EU is, in principle, prohibited.
57


Thus, the Court has already held that that provision enables the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands to leave in force, by way of derogation from the EU rules, the rules which apply within their regional union, in so far as that regional union is further advanced than the internal market (see, as regards Article 233 EEC, whose wording was reproduced in Article 306 EC and then in Article 350 TFEU, judgments of 16 May 1984 in Pakvries, 105/83, EU:C:1984:178, paragraph 11, and 2 July 1996 in Commission v Luxembourg, C‑473/93, EU:C:1996:263, paragraph 42). In order to be justified, that derogation must also be indispensable for the proper functioning of the Benelux regime (judgment of 11 August 1995 in Roders and Others, C‑367/93 to C‑377/93, EU:C:1995:261, paragraphs 25 and 40).
60


As regards the second requirement, set out in paragraph 57 of the present judgment, any derogation, in order to be justified by Article 350 TFEU, must be indispensable for the proper functioning of the Benelux regime at issue, having regard to the objective of Article 350 TFEU, which is to prevent the application of EU law from causing the disintegration of the Benelux Union or from hindering its development (judgments of 16 May 1984 in Pakvries, 105/83, EU:C:1984:178, paragraph 11, and 2 July 1996 in Commission v Luxembourg, C‑473/93, EU:C:1996:263, paragraph 42).
61


As regards Article 4.6 of the BCIP, it must be observed that the rule of EU law from which that provision derogates is that relating to the jurisdiction in disputes relating to trade marks and designs in Article 22(4) of Regulation No 44/2001 and, since 10 January 2015, in Article 24(4) of Regulation No 1215/2012. That rule of EU law establishes as the criterion for jurisdiction the place where the register is kept (judgment of 13 July 2006 in GAT, C‑4/03, EU:C:2006:457, paragraph 22).
65


As far as concerns the case-law of the Court according to which the application of a convention in derogation from a rule laid down by the EU on jurisdiction, recognition and enforcement cannot compromise the principles which underlie judicial cooperation in civil and commercial matters in the European Union, such as the principles, recalled, with regard to jurisdiction in recitals 11 and 12 in Regulation No 44/2001, of legal certainty for litigants and the sound administration of justice (see, in particular, judgments of 4 May 2010 in TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraph 49, and 19 December 2013 in Nipponkoa Insurance, C‑452/12, EU:C:2013:858, paragraph 36), it must be held that a provision such as Article 4.6 of the BCIP, which is founded on the principle that jurisdiction is generally based on the defendant’s domicile, and supplemented by other forums having a close link with the subject matter of the dispute, is consistent with the principles set out in recitals 11 and 12.