Ordre des avocats du barreau de Dinant v JN.
Date: 2019-12-05
22


As a preliminary point, it must be noted that, although certain actions between a public authority and a person governed by private law may come within the scope of Regulation No 1215/2012, it is otherwise where the public authority is acting in the exercise of its public powers (judgments of 11 April 2013, Sapir and Others, C‑645/11, EU:C:2013:228, paragraph 33, and of 15 November 2018, Kuhn, C‑308/17, EU:C:2018:911, paragraph 34). The exercise of public powers by one of the parties to the case, because it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, excludes such a case from ‘civil and commercial matters’ within the meaning of Article 1(1) of that regulation (judgment of 28 February 2019, Gradbeništvo Korana, C‑579/17, EU:C:2019:162, paragraph 49).
24


On the assumption that that is the case, it should be recalled that, according to the Court’s settled case-law, the jurisdiction provided for in Article 4 of Regulation No 1215/2012, namely that the courts of the Member State in which the defendant is domiciled are to have jurisdiction, constitutes the general rule. It is only by way of derogation from that general rule that that regulation provides for rules of special and exclusive jurisdiction for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another Member State (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 21 and the case-law cited).
25


As regards the rule of special jurisdiction provided for, in matters relating to a contract, in Article 7(1)(a) of Regulation No 1215/2012, it should also be noted that the conclusion of a contract is not a condition for the application of that provision (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 23 and the case-law cited).
26


However, it is nevertheless essential, for that provision to apply, to identify an obligation, since the jurisdiction of the national court under that provision is determined by the place of performance of the obligation in question. Thus, the application of that rule presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraphs 24 and 25 and the case-law cited).
29


That situation must be distinguished from the situation at issue in the case giving rise to the judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376), in which, in the case of an obligation of co-owners towards the association of property owners relating to the payment of annual financial contributions to the budget of the association of property owners for the maintenance of the communal areas of an apartment building, the Court ruled that, even if membership of an association of property owners is prescribed by law, the fact remains that the detailed arrangements for management of the communal areas of the building concerned are, as the case may be, governed by contract and the association is joined through voluntary acquisition of an apartment together with ownership shares of the communal areas of the property, so that such an obligation must be regarded as a legal obligation freely consented to (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 27).