Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst.
Date: 2009-04-23
20. Consequently, the second indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted in the light of the origins, objectives and scheme of that regulation (see, to that effect, Case C‑103/05 Reisch Montage  [2006] ECR I‑6827, paragraph 29; Case C‑283/05 ASML [2006] ECR I‑12041, paragraphs 16 and 22; and Case C‑386/05 Color Drack  [2007] ECR I-3699, paragraph 18).
21. In that regard, it is apparent from recitals 2 and 11 in its preamble that Regulation No 44/2001 seeks to unify the rules of conflict of jurisdiction in civil and commercial matters by way of rules of jurisdiction which are highly predictable.
22. Accordingly, Regulation No 44/2001 pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Community, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see Reisch Montage , paragraphs 24 and 25, and Color Drack , paragraph 20).
23. The rules of jurisdiction laid down by Regulation No 44/2001 are founded on the principle that jurisdiction is generally based on the defendant’s domicile, as provided in Article 2 thereof, complemented by the rules of special jurisdiction (see Reisch Montage , paragraph 22, and Color Drack , paragraph 21).
29. In that respect, as the German, Italian and United Kingdom Governments have argued in the written observations which they have submitted to the Court, the concept of service implies, at the least, that the party who provides the service carries out a particular activity in return for remuneration.
30. It cannot be inferred from a contract under which the owner of an intellectual property right grants its contractual partner the right to use that right in return for remuneration that such an activity is involved.
40. Under Article 5(1) of Regulation No 44/2001, when a contract for the sale of goods is not involved, jurisdiction is not determined, however, only on the basis of the rules which apply to contracts for the provision of services. In accordance with Article 5(1)(c) of that regulation, Article 5(1)(a) is applicable to contracts which are neither contracts for the sale of goods nor contracts for the provision of services.
47. The national court wishes to know, in particular, whether Article 5(1)(a) of Regulation No 44/2001 must be interpreted to the effect that, first, the concept of ‘obligation’ used in that Article refers to the obligation which arises under the contract and the non-performance of which is relied upon in support of the action and, secondly, the place where that obligation has or should be performed is to be determined in accordance with the law governing that obligation according to the conflict rules of the court before which the proceedings have been brought, as the Court has already held with regard to Article 5(1) of the Brussels Convention (see, respectively, with regard to the concept of ‘obligation’ referred to in Article 5(1) of the Brussels Convention, De Bloos , paragraph 13; Case 266/85 Shenavai [1987] ECR 239, paragraph 9; Case C‑288/92 Custom Made Commercial  [1994] ECR I‑2913, paragraph 23; Case C‑420/97 Leathertex  [1999] ECR I‑6747, paragraph 31; and Case C‑256/00 Besix  [2002] ECR I‑1699, paragraph 44, and with regard to the place of performance of that obligation within the meaning of Article 5(1) of the Brussels Convention, Industrie Tessili Italiana Como , paragraph 13; Custom Made Commercial , paragraph 26; Case C-440/97 GIE Groupe Concorde and Others  [1999] ECR I-6307, paragraph 32; Leathertex , paragraph 33, and Besix , paragraphs 33 and 36).
48. It is clear that the wording of Article 5(1)(a) of Regulation No 44/2001 is identical in every respect to that of the first sentence of Article 5(1) of the Brussels Convention.
51. In the absence of any reason for interpreting the two provisions differently, consistency requires that Article 5(1)(a) of Regulation No 44/2001 be given a scope identical to that of the corresponding provision of the Brussels Convention, so as to ensure a uniform interpretation of the Brussels Convention and Regulation No 44/2001 (see, to that effect, Case C‑167/00 Henkel [2002] ECR I‑8111, paragraph 49).
52. As the Italian Government has argued in its observations, the provisions of the Brussels Convention which were taken up without amendment by Regulation No 44/2001 should receive the same interpretation under the regulation, and this is all the more necessary given that the regulation replaced the Brussels Convention in relations between the Member States (see, to that effect, Henkel , paragraph 49, and Case C‑111/01 Gantner Electronic  [2003] ECR I-4207, paragraph 28).
54. In that regard, and as pointed out by the Advocate General in points 94 and 95 of her Opinion, it is apparent from the legislative history of Regulation No 44/2001, and from the structure of Article 5(1), that it was only in relation to contracts for the sale of goods and the provision of services that the Community legislature intended, first, no longer to refer to the contested obligation, but to determine the characteristic obligation of those contracts and, secondly, to define, independently, the place of performance as a connecting factor to the competent court in matters relating to a contract.
56. Therefore, the scope to be given to Article 5(1)(a) of Regulation No 44/2001 should be identical to that of Article 5(1) of the Brussels Convention.
57. Having regard to all the foregoing considerations, the answer to the third question is that, in order to determine, under Article 5(1)(a) of Regulation No 44/2001, the court having jurisdiction over an application for remuneration owed pursuant to a contract under which the owner of an intellectual property right grants to its contractual partner the right to use that right, reference must continue to be made to the principles which result from the Court’s case-law relating to Article 5(1) of the Brussels Convention.
Costs