Land Berlin v Ellen Mirjam Sapir and Others.
Date: 2013-04-11
31. As a preliminary point, it must be recalled that, in so far as Regulation No 44/2001 now replaces the Brussels Convention in relations between the Member States, an interpretation given by the Court concerning that convention also applies to the regulation, where its provisions and those of the Brussels Convention may be treated as equivalent (see, inter alia, Case C‑406/09 Realchemie Nederland  [2011] ECR I‑0000, paragraph 38 and the case-law cited).
32. In that connection, it must be stated that the scope of Regulation No 44/2001 is, like that of the Brussels Convention, limited to the concept of ‘civil and commercial matters’. It follows from settled case-law of the Court that that scope is defined essentially by the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject-matter thereof (see, inter alia, Case C‑292/05 Lechouritou and Others  [2007] ECR I‑1519, paragraph 30 and the case-law cited).
33. The Court has thus held that, although certain actions between a public authority and a person governed by private law may come within the scope of Regulation No 44/2001, it is otherwise where the public authority is acting in the exercise of its public powers (see, inter alia, to that effect Case C‑420/07 Apostolides  [2009] ECR I‑3571, paragraph 43 and the case-law cited, and Case C‑154/11 Mahamdia  [2012] ECR I‑0000, paragraph 56).
34. In order to determine whether that is the case in a dispute such as that at issue in the main proceedings, it is therefore necessary to examine the basis and the detailed rules governing the bringing of the action (see, to that effect, Case C‑271/00 Baten  [2002] ECR I‑10489, paragraph 31, and Case C‑266/01 Préservatrice foncière TIARD  [2003] ECR I‑4867, paragraph 23).
40. The rule of jurisdiction laid down in Article 6.1 of Regulation No 44/2001 provides that a person may, where he is one of a number of defendants, be sued in the courts for the place where any one of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (see Case C‑145/10 Painer  [2011] ECR I‑0000, paragraph 73).
41. That special rule, because it derogates from the principle stated in Article 2 of Regulation No 44/2001 that jurisdiction be based on the defendant’s domicile, must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by that regulation (see Painer , paragraph 74 and the case-law cited).
42. In order for Article 6.1 of Regulation No 44/2001 to apply, it is necessary to ascertain whether, between various claims brought by the same plaintiff against different defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (see Case C‑98/06 Freeport  [2007] ECR I‑8319, paragraph 39 and the case-law cited).
43. With regard to that close connection, the Court has stated that, in order for judgments to be regarded as contradictory, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of fact and law (see Freeport , paragraph 40, and Painer , paragraph 79).
44. In that regard, it is not apparent from the wording of Article 6.1 of Regulation No 44/2001 that the conditions laid down for application of that provision include a requirement that the actions brought against different defendants should have identical legal bases. Such an identity is only one relevant factor among others (see Painer , paragraphs 76 and 80).