Holterman Ferho Exploitatie BV and Others v F.L.F. Spies von Büllesheim.
Date: 2015-09-10
32. In that regard, the mere fact that an applicant sets out several claims for liability in his application is not sufficient for such an action to be considered capable of coming within the scope of each of the provisions relied on. That is the case only where the conduct complained of may be considered a breach of the obligations resulting from those provisions (see, by analogy, judgment in Brogsitter , C‑548/12, EU:C:2014:148, paragraph 24).
The first question
34. It must be stated at the outset that the issue of the application of the special rules for determining jurisdiction, laid down in that section of Regulation No 44/2001, arises in the present case only if Mr Spies von Büllesheim can be considered to be bound, through an ‘individual contract of employment’ for the purposes of Article 18(1) of that regulation, to the company of which he was a director and manager, and could thus be classified as a ‘worker’ for the purposes of Article 18(2).
36. Secondly, the issue of classifying the connection between Mr Spies von Büllesheim and that company cannot be resolved on the basis of national law (see, by analogy, judgment in Kiiski , C‑116/06, EU:C:2007:536, paragraph 26).
37. In order to ensure the full effectiveness of Regulation No 44/2001, in particular Article 18, the legal concepts that regulation uses must be given an independent interpretation common to all the Member States (judgment in Mahamdia , C‑154/11, EU:C:2012:491, paragraph 42).
38. Inasmuch as Regulation No 44/2001 replaces the Brussels Convention, the interpretation provided by the Court in respect of the provisions of the Brussels Convention is valid also for those of that regulation whenever the provisions of those Community instruments may be regarded as equivalent (judgment in Zuid-Chemie , C‑189/08, EU:C:2009:475, paragraph 18).
39. With regard to Article 5(1) of the Brussels Convention, a provision which was used as the basis for adopting Articles 18 to 21 of Regulation No 44/2001, the Court has already held that contracts of employment have certain particularities: they create a lasting bond which brings the worker to some extent within the organisational framework of the business of the undertaking or employer, and they are linked to the place where the activities are pursued, which determines the application of mandatory rules and collective agreements (judgment in Shenavai , 266/85, EU:C:1987:11, paragraph 16).
40. That interpretation is borne out by paragraph 41 of the Report by Mr Jenard and Mr Möller on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Lugano on 16 September 1988 (OJ 1990 C 189, p. 57), according to which, in relation to the independent concept of a ‘contract of employment’, it may be considered that it presupposes a relationship of subordination of the employee to the employer.
41. Furthermore, as regards the term ‘employee’, the Court has held in its interpretation of Article 45 TFEU and a number of EU legislative acts, such as Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), that the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he receives remuneration (see, in the context of the freedom of movement for workers, judgment in Lawrie-Blum , 66/85, EU:C:1986:284, paragraphs 16 and 17, and, in the context of Directive 92/85, judgment in Danosa , C‑232/09, EU:C:2010:674, paragraph 39).
43. With regard to the purpose of Chapter II, Section 5 of Regulation No 44/2001, suffice it to note that, as is clear from the thirteenth recital, the regulation aims to provide the weaker parties to contracts, including contracts of employment, with enhanced protection by derogating from the general rules of jurisdiction.
44. In that respect, it is important to recall that the provisions in Section 5 are not only specific but also exhaustive (judgment in Glaxosmithkline and Laboratoires Glaxosmithkline , C‑462/06, EU:C:2008:299, paragraph 18).
46. More specifically, with regard to the relationship of subordination, the issue whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties (judgment in Balkaya , C‑229/14, EU:C:2015:455, paragraph 37).
47. It is for the referring court to examine the extent to which Mr Spies von Büllesheim, in his capacity as a shareholder in Holterman Ferho Exploitatie, was able to influence the will of that company’s administrative body of which he was the manager. In that case, it will be necessary to establish who had authority to issue him with instructions and to monitor their implementation. If it were to turn out that Mr Spies von Büllesheim’s ability to influence that body was not negligible, it would be appropriate to conclude that there was no relationship of subordination for the purposes of the Court’s case-law on the definition of a worker.
52. In order to reply to the first part of the second question, it must be stated that, in accordance with settled case-law, the concept of ‘matters relating to contract’, referred to in Article 5(1) of Regulation No 44/2001, presupposes the existence of an obligation freely assumed by one party towards another (see judgment in Česká spořitelna , C‑419/11, EU:C:2013:165, paragraph 46).
53. As the Advocate General stated in point 46 of his Opinion, Mr Spies von Büllesheim and Holterman Ferho Exploitatie freely assumed mutual obligations in that Mr Spies von Büllesheim chose to manage and administer that company, and the company undertook to remunerate him for those services, so that their relationship may be regarded as being contractual in nature, and consequently the action brought by the company against its former manager on the basis of the alleged breach of his obligation to perform his duties properly under company law comes within the concept of ‘matters relating to contract’ for the purposes of Article 5(1) of Regulation No 44/2001.
54. In that regard, it appears that the activity of a manager creates close links of the same kind as those which are created between the parties to a contract and that, as a consequence, the action brought by the company against its former manager on the basis of the alleged breach of his obligation to perform his duties properly under company law may legitimately be considered to come within the concept of ‘matters relating to contract’ for the purposes of Article 5(1) of Regulation No 44/2001 (see, by analogy, judgment in Peters Bauunternehmung , 34/82, EU:C:1983:87, paragraph 13).
56. In that regard, it must be observed that, taking account of the hierarchy established between points (a) and (b) by point (c) of that provision, the rule of jurisdiction laid down in Article 5(1)(a) of Regulation No 44/2001 is intended to apply only in the alternative and by default with respect to the other rules of jurisdiction in Article 5(1)(b) of that regulation (judgment in Corman-Collins , C‑9/12, EU:C:2013:860, paragraph 42).
57. It is clear from the case-law of the Court that a contract which has as its characteristic obligation the provision of services will be classified as a ‘provision of services’ within the meaning of the second indent of Article 5(1)(b) of that regulation (judgment in Car Trim , C‑381/08, EU:C:2010:90, paragraph 32). The concept of ‘services’ requires at least that the party who provides the service should carry out a particular activity in return for remuneration (judgment in Falco Privatstiftung and Rabitsch , C‑533/07, EU:C:2009:257, paragraph 29).
60. Taking account of the wording of the second indent of Article 5(1)(b) of Regulation No 44/2001, according to which it is the place in the Member State where, ‘under the contract’, the services were provided or should have been provided which is decisive, the place of the main provision of services must be deduced, in so far as possible, from the provisions of the contract itself (judgment in Wood Floor Solutions Andreas Domberger , C‑19/09, EU:C:2010:137, paragraph 38).
68. It is settled case-law that Article 5(3) of Regulation No 44/2001 applies to all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Article 5(1) of the regulation (see, inter alia, judgment in Brogsitter , C‑548/12, EU:C:2014:148, paragraph 20 and the case-law cited).
71. If the conduct complained of may be considered a breach of the manager’s contract, that being a matter for the referring court to determine, it must be concluded that the court which has jurisdiction to rule on that conduct is the one specified in Article 5(1) of Regulation No 44/2001. If not, the jurisdiction rule set out in Article 5(3) of that regulation applies (see, by analogy, judgment in Brogsitter , C‑548/12, EU:C:2014:148, paragraphs 24 to 27).
72. In that regard, it should be recalled that Article 5(3) of Regulation No 44/2001 must be interpreted independently and strictly (judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraph 37 and the case-law cited). As regards the place where ‘the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001, it must be recalled that that expression is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (judgment in Coty Germany , C‑360/12, EU:C:2014:1318, paragraph 46).
73. According to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of that regulation is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraph 39 and the case-law cited).
74. In matters relating to tort, delict or quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraph 40).
75. Identification of one of the linking factors recognised by the case-law set out in paragraph 72 above must therefore make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability do in fact exist, so that only the court within whose jurisdiction the relevant linking factor is situated may validly be seised (judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraph 41 and the case-law cited).
77. With regard to the place where the damage occurred, it is clear from the case-law of the Court, that that is the place where the damage alleged by the company actually manifests itself (see, to that effect, judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraphs 52).