Wikingerhof GmbH & Co. KG v Booking.com BV.
Date: 2020-11-24
As a preliminary point, it should be noted that, in accordance with recital 34 of Regulation No 1215/2012, that regulation repeals and replaces Regulation No 44/2001, which itself replaced the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the successive conventions on the accession of new Member States to that convention. Consequently, the Court’s interpretation of the provisions of the latter legal instruments also applies to those of Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’. That is the case with point 3 of Article 5 of that convention and Regulation No 44/2001, on the one hand, and point 2 of Article 7 of Regulation No 1215/2012, on the other (see, to that effect, judgment of 9 July 2020, Verein für Konsumenteninformation, C‑343/19, EU:C:2020:534, paragraph 22).
It is the Court’s settled case-law that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of point 2 of Article 7 of Regulation No 1215/2012 covers all actions which seek to establish the liability of a defendant and do not concern matters relating to a contract within the meaning of point 1(a) of Article 7 of that regulation (see, to that effect, judgments of 27 September 1988, Kalfelis, 189/87, EU:C:1988:459, paragraph 18, and of 12 September 2018, Löber, C‑304/17, EU:C:2018:701, paragraph 19), that is to say, actions not based on a legal obligation freely consented to by one person towards another (judgment of 20 January 2005, Engler, C‑27/02, EU:C:2005:33, paragraph 51).
According to the Court’s settled case-law, the two rules of special jurisdiction laid down in those provisions must be interpreted independently, by reference to the scheme and purpose of Regulation No 1215/2012, in order to ensure that that regulation is applied uniformly in all the Member States (see, to that effect, judgments of 27 September 1988, Kalfelis, 189/87, EU:C:1988:459, paragraph 16; of 17 September 2002, Tacconi, C‑334/00, EU:C:2002:499, paragraph 19; and of 18 July 2013, ÖFAB, C‑147/12, EU:C:2013:490, paragraph 27). That requirement, which applies in particular to the definition of the respective scopes of those two rules, means that the concepts of ‘matters relating to a contract’ and of ‘matters relating to tort, delict or quasi-delict’ cannot be taken to refer to the way in which the legal relationship at issue before the national court is classified by the applicable national law (see, to that effect, judgment of 13 March 2014, Brogsitter, C‑548/12, EU:C:2014:148, paragraph 18).
As regards, in the first place, the scheme of Regulation No 1215/2012, it is based on the principle that jurisdiction lies with the courts of the Member State in which the defendant is domiciled, whereas the rules on special jurisdiction laid down in, inter alia,  Article 7 thereof constitute derogations from that principle and, as such, are to be interpreted restrictively (see, to that effect, judgment of 27 September 1988, Kalfelis, 189/87, EU:C:1988:459, paragraph 19) and are mutually exclusive in the application of that regulation.
As regards, in the second place, the purpose of Regulation No 1215/2012, it is apparent from recital 16 of that regulation that the rules of special jurisdiction on which the applicant may rely under, on the one hand, point 1 of Article 7 of that regulation and, on the other hand, point 2 of Article 7 thereof, were introduced on account of the existence, in the matters covered by those provisions, of a particularly close connecting factor between an action and the court which may be called upon to hear it, or in order to facilitate the sound administration of justice (see, to that effect, judgment of 4 October 2018, Feniks, C‑337/17, EU:C:2018:805, paragraph 36).
In particular, as the Advocate General observed in point 90 of his Opinion, the court hearing the action must decide whether a claim between contracting parties is connected to matters relating to a contract, within the meaning of point 1 of Article 7 of Regulation No 1215/2012, or to matters relating to tort or delict, within the meaning of point 2 of Article 7 of that regulation, by reference to the obligation, whether contractual or a matter relating to tort, delict or quasi-delict, which constitutes the cause of action (see, to that effect, judgment of 13 March 2014, Brogsitter, C‑548/12, EU:C:2014:148, paragraph 26).
Thus, an action concerns matters relating to a contract within the meaning of point 1(a) of Article 7 of Regulation No 1215/2012 if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter (see, to that effect, judgment of 13 March 2014, Brogsitter, C‑548/12, EU:C:2014:148, paragraph 25). That is in particular the case of an action based on the terms of a contract or on rules of law which are applicable by reason of that contract (see, to that effect, judgments of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 53, and of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraphs 30 to 33).
That interpretation is consistent with the objectives of proximity and sound administration of justice pursued by that regulation, referred to in recital 16 thereof and recalled in paragraph 28 above. The court having jurisdiction under point 2 of Article 7 of Regulation No 1215/2012, namely, in the circumstances at issue in the main proceedings, that of the market affected by the alleged anticompetitive conduct, is the most appropriate for ruling on the main issue of whether that allegation is well founded, particularly in terms of gathering and assessing the relevant evidence in that regard (see, by analogy, judgments of 29 July 2019, Tibor-Trans, C‑451/18, EU:C:2019:635, paragraph 34, and of 9 July 2020, Verein für Konsumenteninformation, C‑343/19, EU:C:2020:534, paragraph 38).