ÖFAB, Östergötlands Fastigheter AB v Frank Koot and Evergreen Investments BV.
Date: 2013-07-18
24. In that connection, it must be recalled that, according to settled case-law, Article 1(2)(b) of Regulation No 44/2001 excludes from the scope of that regulation only actions which derive directly from insolvency proceedings and are closely connected with them (see, to that effect, Case C‑111/08 SCT Industri  [2009] ECR I‑5655, paragraph 21 and the case-law cited, and Case C‑213/10 F-Tex  [2012] ECR I‑0000, paragraph 29).
27. In order to answer the first three questions, it must be observed that, according to settled case-law, the concepts of ‘matters relating to contract’ and ‘matters relating to tort, delict or quasi-delict’ in Article 5(1) and (3) of Regulation No 44/2001 must be interpreted independently, by reference to its scheme and purpose (see, to that effect, Joined Cases C‑509/09 and C‑161/10 eDate Advertising and Martinez  [2011] ECR I‑0000, paragraph 38 and the case-law cited).
28. Second, in so far as Regulation No 44/2001 now replaces, in the relations between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the regulation whenever the provisions of those Community instruments may be regarded as equivalent (see, inter alia, eDate Advertising and Martinez , paragraph 39 and the case-law cited).
29. Articles 2 and 5(1)(a) and (3) of Regulation No 44/2001, which are relevant to the case in the main proceedings, reflect the same system as Articles 2 and 5(1) and (3) of the Brussels Convention and are drafted in almost identical terms. In the light of such similarity, it is necessary to ensure, in accordance with recital 19 in the preamble to Regulation No 44/2001, continuity in the interpretation of those two instruments (see, inter alia, Case C‑189/08 Zuid-Chemie  [2009] ECR I‑6917, paragraph 19).
30. Thus, according to settled case-law, the system of common rules of conferment of jurisdiction laid down in Title II of Regulation No 44/2001 is based on the general rule, set out in the first paragraph of Article 2(1), that persons domiciled in a Member State are to be sued in the courts of that State, irrespective of the nationality of the parties. It is only by way of derogation from that fundamental principle attributing jurisdiction to the courts of the defendant’s domicile that Section 2 of Title II of Regulation No 44/2001 makes provision for certain special jurisdictional rules, such as that laid down in Article 5(3) of the Convention (see, to that effect, Zuid-Chemie , paragraphs 20 and 21, and Case C‑144/10 BVG  [2011] ECR I‑3961, paragraph 30 and the case-law cited).
31. The Court has also held that those rules of special jurisdiction must be interpreted restrictively and cannot give rise to an interpretation going beyond the cases expressly envisaged by the regulation (see, to that effect, Zuid-Chemie , paragraph 22 and the case-law cited).
32. Nevertheless, it is settled case-law that the term ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001 covers all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5(1)(a) thereof (see, as regards the interpretation of the Brussels Convention, Case 189/87 Kalfelis  [1988] ECR 5565, paragraph 18; Case C‑261/90 Reichert and Kockler  [1992] ECR I‑2149, paragraph 16; Case C‑51/97 Réunion européenne and Others  [1998] ECR I‑6511, paragraph 22; and Case C‑334/00 Tacconi  [2002] ECR I‑7357, paragraph 21).
33. In that connection, it must be observed, first, that the concept of ‘matters relating to contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001 is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another. Therefore, the application of the rule of special jurisdiction provided for matters relating to a contract in Article 5(1)(a) of Regulation No 44/2001 presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (see, as regards the interpretation of the Brussels Convention, Case C‑27/02 Engler  [2005] ECR I‑481, paragraphs 50 and 51, and Case C‑419/11 Česká spořitelna [2013] ECR I‑0000, paragraphs 46 and 47 and the case-law cited).
34. Second, it is settled case-law that liability in tort, delict or quasi-delict can arise only on condition that a causal connection can be established between the damage and the event in which that damage originates (see, as regards the interpretation of the Brussels Convention, Case 21/76 Bier [1976] ECR 1735, ‘ Mines de potasse d’Alsace ’, paragraph 16, and Zuid-Chemie , paragraph 28 and the case-law cited).
41. That would have the consequence of multiplying the courts with jurisdiction to hear actions calling into question the same improper conduct by the member of the board of directors or the shareholder of the company concerned, according to the nature of that company’s debts which may be the subject of such actions. In such a situation, the aim of proximity in the rules of special jurisdiction laid down in Article 5(1) and (3) of Regulation No 44/2001, based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred (see, to that effect, inter alia, Case C‑381/08 Car Trim  [2010] ECR I‑1255, paragraph 48 and the case-law cited, and Case C‑228/11 Melzer [2013] ECR I‑0000, paragraph 26 and the case-law cited), preclude the determination of the court having jurisdiction being dependent on the nature of the debts of the company concerned. Furthermore, it must be observed that, as regards a defendant who is held liable for the debts of another, such an interpretation of the rules of jurisdiction laid down in Article 5 of the regulation would not have the degree of predictability required by recital 11 in the preamble thereto.
44. In that connection, it must be recalled that it is for the national courts to furnish the Court with the factual and legal information necessary to enable it to give useful answers to the questions referred (Case C‑249/97 Gruber  [1999] ECR I‑5295, paragraph 19, and Case C‑177/10 Rosado Santana  [2011] ECR I‑7907, paragraph 33).
45. As is clear from settled case-law, the need to provide an interpretation of European Union law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Case C‑134/03 Viacom Outdoor  [2005] ECR I‑1167, paragraph 22; Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 29; and Case C‑145/10 Painer [2011] ECR I‑0000, paragraph 46).
49. In order to answer those questions, it must be recalled, first, that, according to settled case-law, the rule establishing special jurisdiction laid down, by way of derogation from the principle that jurisdiction lies with the courts of the defendant’s place of domicile, in Article 5(3) of Regulation No 44/2001 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, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see, to that effect, eDate Advertising and Martinez , paragraph 40, and Case C‑133/11 Folien Fischer and Fofitec  [2012] ECR I‑0000, paragraph 37 and the case-law cited).
50. In matters of tort, delict or quasi-delict, the courts of the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on grounds of proximity and ease of taking evidence (see, inter alia, Folien Fischer and Fofitec , paragraph 38 and the case-law cited).
51. Second, the expression ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001 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 (see, Folien Fischer and Fofitec , paragraph 39 and the case-law cited). Those two places could constitute a significant connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly helpful in relation to the evidence and the conduct of the proceedings ( eDate Advertising and Martinez , paragraph 41 and the case-law cited).
58. Second, it must be observed that to allow the transfer of claims by the initial creditor to have an impact on the determination of the court having jurisdiction under Article 5(3) of Regulation No 44/2001 would also be contrary to o ne of the aims of that regulation, set out in recital 11 in the preamble thereto, according to which the rules of jurisdiction must be highly predictable.