Paweł Hofsoe v LVM Landwirtschaftlicher Versicherungsverein Münster AG.
Date: 2018-01-31
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Third, since Article 11(1)(b) and Article 13(2) of Regulation No 1215/2012 repeat, essentially, the respective wording of Article 9(1)(b) and Article 11(2) of Regulation No 44/2001, the interpretation given by the Court with regard to the provisions of that latter regulation remain valid for the equivalent provisions of Regulation No 1215/2012 (see, by analogy, judgments of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 60, and of 21 January 2016, SOVAG, C‑521/14, EU:C:2016:41, paragraph 43).
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Fourth, it should also be recalled that the Court has held that the purpose of the reference in Article 13(2) of Regulation No 1215/2012 is to add injured parties to the list of claimants contained in Article 11(1)(b) of that regulation, without restricting the category of persons having suffered damage to those suffering it directly (judgment of 20 July 2017, MMA IARD, C‑340/16, EU:C:2017:576, paragraph 33 and the case-law cited).
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Thus, the forum actoris must be extended respectively to the heirs of an insured party and to the employer who continued to pay the salary of an employee injured in a road accident while he is on sick leave after that accident (judgments of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraph 44, and of 20 July 2017, MMA IARD, C‑340/16, EU:C:2017:576, paragraph 35).
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Those decisions are based on the reasoning that, first, the purpose of the provisions listed in Section 3 of Chapter II of Regulation No 1215/2012 is to protect the weaker party by rules of jurisdiction more favourable to his interests than the general rules and, second, an assignee of the rights of the directly injured party, who may himself be considered to be a weaker party, should be able to benefit from the special rules on the jurisdiction of courts laid down in the combined provisions of Article 11(1)(b) and of Article 13(2) of Regulation No 1215/2012 (see, to that effect, judgment of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraphs 40 and 44).
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That said, the derogations from the principle of jurisdiction of the defendant’s domicile must be exceptional in nature and be interpreted strictly (see, to that effect, judgments of 17 June 1992, Handte, C‑26/91, EU:C:1992:268, paragraph 14; of 19 January 1993, Shearson Lehman Hutton, C‑89/91, EU:C:1993:15, paragraphs 14 to 17; of 13 July 2000, Group Josi, C‑412/98, EU:C:2000:399, paragraphs 49 and 50; and of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraphs 36 to 39).
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In those circumstances, the protective function which Article 13(2) of Regulation No 1215/2012 fulfils, read in the light of Article 11(1)(b) of that regulation necessitates that the application of the special rules of jurisdiction laid down in those provisions are not to be extended to persons for whom that protection is not justified (see, to that effect, judgments of 13 July 2000, Group Josi, C‑412/98, EU:C:2000:399, paragraphs 65 and 66; of 26 May 2005, GIE Réunion européenne and Others, C‑77/04, EU:C:2005:327, paragraph 20; and of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraph 41).
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It follows that no special protection is justified where the parties concerned are professionals in the insurance sector, neither of whom may be presumed to be in a weaker position than the other (see judgments of 26 May 2005, GIE Réunion européenne and Others, C‑77/04, EU:C:2005:327, paragraph 20; of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraph 42; and of 21 January 2016, SOVAG, C‑521/14, EU:C:2016:41, paragraphs 30 and 31).
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Although it is true that recital 18 of Regulation No 1215/2012 states that the purpose of Section 3 of Chapter II of that regulation is to protect the weaker party by rules of jurisdiction more favourable to his interests than the general rules, it is apparent that the action at issue in the main proceedings concerns relations between professionals and that it is not such as to affect the procedural situation of a party deemed to be weaker (see, to that effect, judgment of 21 January 2016, SOVAG, C‑521/14, EU:C:2016:41, paragraphs 29 and 30).
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In that regard, the fact that a professional, such as Mr Hofsoe, carries out his business on a small scale, cannot lead to the conclusion that he is deemed to be a weaker party than the insurer. A case-by-case assessment of the question whether such a professional may be considered as a ‘weaker party’ in order to be covered by the definition of ‘injured party’, within the meaning of Article 13(2) of Regulation No 1215/2012, would give rise to the risk of legal uncertainty and would be contrary to the objective of that regulation, laid down in recital 15 thereof, according to which the rules of jurisdiction must be highly predictable (see, to that effect, judgment of 20 July 2017, MMA IARD, C‑340/16, EU:C:2017:576, paragraph 34).