Refcomp SpA v Axa Corporate Solutions Assurance SA and Others.
Date: 2013-02-07
18. Secondly, as regards the interpretation to be given to the provisions of the Regulation referred to in the questions, it must be recalled first of all that, in so far as the Regulation replaces 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 accession conventions for the new Member States (‘the Brussels Convention’) in the relations between Member States, the interpretation provided by the Court in respect of the provisions of that convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent (see, in particular, Case C-133/11 Folien Fischer and Fofitec  [2012] ECR, paragraph 31).
19. That is the case as far as concerns the first paragraph of Article 17 of that convention and Article 23(1) of the Regulation, which are drafted in almost identical terms.
20. Such is also the case as regards the concept of ‘matters relating to contract’ within the meaning of Article 5(1) of the Regulation, since the amendments made to that provision concern only the linking factor adopted in order to determine the courts with jurisdiction as regards contracts for the sale of goods and those for the supply of services, leaving the substance of the rest of the corresponding provision of the Brussels Convention unchanged (see, to that effect, Case C-533/07 Falco Privatstiftung and Rabitsch [2009] ECR I-3327, paragraphs 48 to 57).
21. As to the method of interpretation to be preferred with regard to those two provisions, the Court has stated, in the case of the first paragraph of Article 17 of the Brussels Convention, that, taking account of the objectives and the general scheme of that convention which are also those of the Regulation and in order to ensure the uniform application of that instrument, the concept of ‘jurisdiction clause’ referred to in that provision must be interpreted not as a simple reference to the national law of one or other of the States concerned but as an independent concept (see Case C-214/89 Powell Duffryn  [1992] ECR I-1745, paragraphs 13 and 14).
22. On similar grounds, the Court held that the concept of ‘matters relating to contract’, within the meaning of Article 5(1) of the Brussels Convention must also be interpreted independently (see, in particular, Handte , paragraph 10 and the case-law cited).
25. In that connection, it must be stated that, as regards the conditions for the validity of a jurisdiction clause, Article 23(1) of the Regulation sets out in substance the formal requirements and mentions only one substantive condition relating to the subject-matter of the clause which must concern a particular legal relationship. Therefore, the wording of that provision does not indicate whether a jurisdiction clause may be transmitted, beyond the circle of the parties to a contract, to a third party, a party to a subsequent contract and successor, in whole or in part, to the rights and obligations of one of the parties to the initial contract.
26. However, Article 23(1) of the Regulation clearly indicates that its scope is limited to cases in which the parties have ‘agreed’ on a court. As appears from recital 11 in the preamble to the Regulation, it is that consensus between the parties which justifies the primacy granted, in the name of the principle of the freedom of choice, to the choice of a court other than that which may have had jurisdiction under the regulation.
27. The Court has also held, as regards the first paragraph of Article 17 of the Brussels Convention, that, by making the validity of a jurisdiction clause subject to the existence of an ‘agreement’ between the parties, that provision imposes on the court before w hich the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties (Case C-106/95 MSG  [1997] ECR I-911, paragraph 15 and the case-law cited).
28. Therefore, Article 23(1) of the Regulation must be interpreted as meaning that, like the aim pursued by the first paragraph of Article 17 of the Brussels Convention, ensuring the real consent of the parties is one of the aims of that provision (see MSG , paragraph 17 and Case C-159/97 Castelletti  [1999] ECR I-1597, paragraph 19).
29. It follows that the jurisdiction clause incorporated in a contract may, in principle, produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract. In order for a third party to rely on the clause it is, in principle, necessary that the third party has given his consent to that effect.
31. Thus, the Court has acknowledged that the shareholder who subscribes to the statutes of a company is deemed to give his consent to a jurisdiction clause therein, on the ground that subscribing creates a relationship between the shareholder and the company and between the shareholders themselves which must be regarded as contractual (see to that effect, Powell Duffryn , paragraphs 16 to 19).
32. However, that case-law cannot be transposed to the relationship between the sub-buyer of goods purchased from an intermediate seller and the manufacturer of those goods. In that connection, the Court has ruled to that effect that that relationship is not covered by ‘matters relating to contract’ within the meaning of Article 5(1) of the Brussels Convention. It held, in the context of an action for damages brought by the sub-buyer of goods against the manufacturer thereof that there is no contractual relationship between the sub-buyer and the manufacturer, because the latter has not undertaken any contractual obligation towards the former ( Handte , paragraph 16).
34. However, the Court also acknowledged that, in matters relating to maritime transport contracts, a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to that contract if that clause has been adjudged valid between the carrier and the shipper and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations (see Case 71/83 Russ [1984] ECR 2417, paragraph 24; Castelletti , paragraph 41; and Case C-387/98 Coreck  [2000] ECR I-9337, paragraphs 23 to 27).
35. The scope of that case-law must, however, be assessed by taking account of the very specific nature of bills of lading which, as the Advocate General explained in point 54 of his Opinion, is an instrument of international commerce intended to govern a relationship involving at least three persons, namely the maritime carrier, the consigner of the goods or shipper, and the recipient of the goods. Under most legal systems of the Member States which agree on this matter the bill of lading is a negotiable instrument which allows the owner to transfer the goods, en route, to a purchaser who becomes as bearer of the bill of lading, the consignee of the goods and the holder of all the rights and obligations of the shipper in relation to the carrier.
36. It is in the light of that relationship of substitution between the holder of the bill of lading and the shipper that the Court considered that, by the effect of the acquisition of the bill of lading the holder is bound by the agreement on jurisdiction (see, to that effect, Russ , paragraph 25). Conversely, where the relevant national law does not provide for such a relationship of substitution, the court hearing the case must ascertain whether that third party has actually accepted the jurisdiction clause ( Coreck , paragraph 26).
37. In a chain of contracts transferring ownership, the relationship of succession between the initial buyer and the sub-buyer is not regarded as the transfer of a single contract or the transfer of all the rights and obligations for which it provides. In such a case, the contractual obligations of the parties may vary from contract to contract, so that the contractual rights which the sub-buyer can enforce against his immediate seller will not necessarily be the same as those which the manufacturer will have accepted in his relationship with the first buyer ( Handte , paragraph 17).
38. Furthermore, the agreement of the national legal systems with respect to the effects of the transfer of the bill of lading to a third party is not found in relation to contracts transferring ownership, as regards to which it appears that the relationships between manufacturer and sub-buyer are perceived differently in the Member States (see, to that effect, Handte , paragraph 20).
39. In such circumstances, to refer the assessment as to whether the sub-buyer may rely on a jurisdiction clause incorporated in the initial contract between the manufacturer and the first buyer to national law, as Refcomp and the German and Spanish Governments have suggested, would give rise to different outcomes among the Member States liable to compromise the aim of unifying the rules of jurisdiction pursued by the Regulation, as is clear from recital 2 in the preamble thereto. Such a reference to national law would also be an element of uncertainty incompatible with the concern to ensure the predictability of jurisdiction which is, as stated in recital 11 in the preamble to the Regulation, one of its objectives.
40. Therefore, it is appropriate to revert to the general rule, set out in paragraph 21 of the present judgment, according to which the concept of ‘jurisdiction clause’ referred to in that provision must be interpreted as an independent concept, and to give full effect to the principle of freedom of choice on which Article 23(1) of the Regulation is based.