1 This request for a preliminary ruling concerns the interpretation of Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1) (‘the Brussels I bis Regulation’).
2 The request has been made in proceedings between EXTÉRIA s.r.o., established in Ostrava (Czech Republic), and Spravime s.r.o., established in Ivanovice (Slovak Republic), concerning a claim for payment of a contractual penalty based on the non-execution of a contract to enter into a future contract relating to the future conclusion of a franchise agreement.
3 Article 4(1) of the Brussels I bis Regulation is worded as follows: ‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’
4 Under Article 7(1) of that regulation: ‘A person domiciled in a Member State may be sued in another Member State: (1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided; (c) if point (b) does not apply then point (a) applies’.
5 The applicant in the main proceedings, which provides consultancy services in the field of occupational safety and health, and the defendant in the main proceedings concluded, on 28 June 2018, a contract to enter into a future contract relating to the future conclusion of a franchise agreement (‘the contract to enter into a future contract’) which would enable the defendant in the main proceedings to operate and manage franchised branches of the applicant in the main proceedings in Slovakia. That contract to enter into a future contract contained, in addition to the obligation to conclude that contract in the future, certain contractual terms and conditions and an undertaking on the part of the defendant in the main proceedings to pay an advance of EUR 20400, exclusive of value added tax, and, in the event of failure to comply with that obligation, a contractual penalty equal to the amount of that advance (‘the contractual penalty’).
6 That advance, the purpose of which was not only to guarantee that obligation but also to preserve the confidentiality of all the information contained in that contract to enter into a future contract relating to the franchise concept of the applicant in the main proceedings, had to be paid within 10 days of the signing of that contract to enter into a future contract. In addition, the latter gave the applicant in the main proceedings the right to withdraw if the defendant in the main proceedings did not pay it the agreed fee within the prescribed period.
7 The contract to enter into a future contract provided for the application of Czech law, without any agreement on jurisdiction having been concluded.
8 Alleging that the defendant in the main proceedings had failed to fulfil its obligation to pay the advance in question, the applicant in the main proceedings withdrew from the contract to enter into a future contract and claimed payment of the contractual penalty.
9 To that end, it brought a European order for payment procedure before the Okresní soud v Ostravě (District Court, Ostrava, Czech Republic).
10 By order of 17 December 2020, that court dismissed the plea of lack of jurisdiction of the Czech courts raised by the defendant in the main proceedings and held that it had jurisdiction to hear the dispute at issue on the basis of Article 7(1)(a) of the Brussels I bis Regulation, since that dispute concerned the performance of an obligation, within the meaning of that provision, namely the obligation to pay the contractual penalty, which had to be performed at the place where the applicant in the main proceedings had its registered office.
11 In the appeal against that order, the defendant in the main proceedings invoked the jurisdiction of the Slovak courts on the ground that the obligation secured by that contractual penalty, which admittedly had its source in the contract to enter into a future contract, was nevertheless linked to the place of production and delivery of the goods under the franchise agreement which was to be concluded.
12 By an order of 16 February 2021, the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), as the court of appeal, upheld the decision at first instance, holding that the subject matter of the action was the right to payment of the contractual penalty on account of non-compliance, by the defendant in the main proceedings, of the terms of the contract to enter into a future contract and was therefore not related to the production or delivery of goods, so that Article 7(1)(b) of the Brussels I bis Regulation did not apply. Accordingly, jurisdiction should be determined in accordance with Article 7(1)(a) of that regulation, under which the court having jurisdiction is the court for the place of performance of the obligation in question, and that place must be determined in accordance with the law of the court seised, in the present case Czech law.
13 The defendant in the main proceedings brought an appeal on a point of law against that order before the Nejvyšší soud (Supreme Court, Czech Republic), the referring court, claiming that the nature of the right to payment of the contractual penalty had not been correctly assessed.
14 Referring to the Court’s settled case-law on the interpretation of the concept of ‘matters relating to a contract’ (judgments of 17 June 1992, Handte, C‑26/91, EU:C:1992:268, paragraph 15, and of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraph 30), that court concludes that the dispute before it, concerning entitlement to payment of the contractual penalty, has its origin in the contract to enter into a future contract, so that that dispute falls within the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels I bis Regulation.
15 Since, according to that court, that right is not linked to the production or delivery of goods, the application of the first indent of Article 7(1)(b) should be ruled out from the outset.
16 It is then necessary to determine whether it is not a right relating to a ‘provision of services’ within the meaning of the second indent of Article 7(1)(b) thereof.
17 The referring court points out that there are two possible solutions for the purposes of determining the court with international jurisdiction, namely one would be to classify the contract to enter into a future contract as an autonomous contract, and the other would be to determine the nature of the rights resulting from the contract to enter into a future contract on the basis of the nature of the contract to be concluded.
18 In the light of the Court’s case-law, the mere conclusion of a contract to enter into a future contract does not constitute a provision of services, within the autonomous meaning of EU law as a contract involving the performance of an activity by means of positive acts for the benefit of another person in return for remuneration (see, to that effect, judgments of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257; of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559; and of 25 March 2021, Obala i lučice, C‑307/19, EU:C:2021:236), so that the Nejvyšší soud (Supreme Court) is inclined to conclude that that contract to enter into a future contract does not fall within the scope of the second indent of Article 7(1)(b) of the Brussels I bis Regulation.
19 Consequently, in accordance with Article 7(1)(c) thereof, according to which Article 7(1)(a) applies if Article 7(1)(b) does not apply, the court with jurisdiction should be determined by reference to the place of performance of the obligation in question.
20 In so far as the Court has not yet expressly addressed the question whether a pactum de contrahendo can be classified as a ‘contract for services’, there is reasonable doubt as to the correct interpretation of Article 7(1)(b) of the Brussels I bis Regulation.
21 In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: ‘Must Article 7(1)(b) of [the Brussels I bis] Regulation be interpreted as meaning that the concept “contract for the provision of services” also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision?’
22 By its question, the referring court asks, in essence, whether Article 7(1)(b) of the Brussels I bis Regulation must be interpreted as meaning a contract to enter into a future contract, relating to the future conclusion of a franchise agreement, providing for an obligation to pay a contractual penalty based on non-performance of that contract to enter into a future contract, a contractual obligation the breach of which serves as the basis for a claim before the courts, falls within the concept of a contract for the ‘provision of services’ within the meaning of that provision.
23 As a preliminary point, it should be borne in mind that, in so far as the Brussels I bis Regulation repealed and replaced Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which replaced the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), the interpretation given by the Court in relation to Regulation No 44/2001 also applies to the Brussels I bis Regulation, where the provisions of those instruments of EU law may be regarded as equivalent. That is the case in particular with Article 5(1) of Regulation No 44/2001 and Article 7(1) of the Brussels I bis Regulation (see, to that effect, judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraphs 19 and 20 and the case-law cited).
24 As regards the second indent of Article 7(1)(b) of the Brussels I bis Regulation, it must be held that the wording of that provision does not, on its own, provide an answer to the question referred, since that provision does not define the concept of a contract for the provision of services (see, to that effect, judgment of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257, paragraph 19).
25 According to settled case-law, the terms ‘matters relating to a contract’ and ‘provision of services’, referred to respectively in Article 7(1)(a) and the second indent of Article 7(1)(b) of the Brussels I bis Regulation, must be interpreted independently, with reference primarily to the system and objectives of that regulation, with a view to ensuring its uniform application in all the Member States. They cannot therefore be understood as referring to the characterisation which the applicable national law gives to the legal relationship at issue before the national court (see, to that effect, judgment of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 19 and the case-law cited).
26 In that regard, it should be noted that the Brussels I bis Regulation seeks to unify the rules on conflict of jurisdiction in civil and commercial matters by way of rules of jurisdiction which are highly predictable and thus pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling both the applicant to identify easily the court before which he or she may bring proceedings and the defendant reasonably to foresee the court before which he or she may be sued (see, to that effect, judgment of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 16 and the case-law cited).
27 Furthermore, it is apparent from the case-law that the system of common rules on conferment of jurisdiction provided for in Chapter II of the Brussels I bis Regulation is based on the general rule, set out in Article 4(1) thereof, that persons domiciled in a Member State are to be sued in the courts of that Member State, irrespective of the nationality of the parties. It is only by way of derogation from that general rule of jurisdiction of the courts of the defendant’s domicile that Chapter II, Section 2, of that regulation provides for a number of special rules of jurisdiction, including that set out in Article 7(1) of that regulation (see, to that effect, judgment of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 17 and the case-law cited).
28 In that context, it should be noted that the special rules of jurisdiction laid down by the Brussels I bis Regulation are to be interpreted strictly and do not permit an interpretation which goes beyond the cases expressly envisaged by that regulation (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 22 and the case-law cited).
29 The rule of special jurisdiction in matters relating to a contract, laid down in Article 7(1) of the Brussels I bis Regulation, reflects a concern for proximity and is motivated by the existence of a close link between the contract concerned and the court called upon to hear it. Thus, the general rule of the jurisdiction of the courts for the defendant’s domicile, referred to in paragraph 27 of the present judgment, is supplemented by that special rule of jurisdiction in matters relating to a contract, pursuant to which the defendant may also be sued before the courts for the place of performance of the obligation in question (see, to that effect, judgment of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257, paragraphs 24 and 25).
30 As regards the place of performance of contractual obligations arising under a contract for the provision of services, the second indent of Article 7(1)(b) of the Brussels I bis Regulation autonomously defines the linking factor in respect of that contract as being the place in a Member State where, under that contract, the services were provided or should have been provided, in order to reinforce the objectives of unification and foreseeability of the rules of jurisdiction and, consequently, of legal certainty. That autonomous linking factor is intended to apply to all claims based on the same contract for the provision of services (see, to that effect, judgments of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257, paragraphs 26 and 27, and of 11 March 2010, Wood Floor Solutions Andreas Domberger, C‑19/09, EU:C:2010:137, paragraph 23).
31 It is in the light of those considerations that it must be determined whether an obligation to pay a contractual penalty on account of non-performance of a contract to enter into a future contract, such as that at issue in the main proceedings, falls within the concept of ‘provision of services’ within the meaning of the second indent of Article 7(1)(b) of the Brussels I bis Regulation.
32 First of all, it should be noted that the obligations binding the parties and arising from the terms of a contract to enter into a future contract, such as that at issue in the main proceedings, fall within the concept of ‘matters relating to a contract’ within the meaning of Article 7(1)(a) of the Brussels I bis Regulation.
33 Next, while Article 7(1)(a) of the Brussels I bis Regulation determines jurisdiction in matters relating to a contract by reference to the place of performance of the obligation in question, Article 7(1)(b) lays down, in relation to the sale of goods and the provision of services particular linking factors, fixing that place of performance respectively at the place in a Member State where, under the contract, the goods were delivered or should have been delivered and at the place in a Member State where, under the contract, the services were provided or should have been provided.
34 As regards, more specifically, the classification of a contract for the ‘provision of services’, it is clear from the case-law that the concept of ‘services’, within the meaning of the second indent of Article 7(1)(b), implies, at the very least, that the party providing them carries out a specific activity in return for remuneration (see, in particular, judgments of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257, paragraph 29, and of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraph 35).
35 As regards the first criterion in that definition, namely that of the existence of an activity, the Court has made it clear that it requires the performance of positive acts, to the exclusion of mere abstentions. In that regard, in the case of a contract the object of which is the distribution of the products of one of the parties by the other party, the Court has held that that criterion corresponds to the characteristic performance provided by the party which, by ensuring such distribution, participates in the development of the dissemination of the products concerned (see, in particular, judgments of 19 December 2013, Corman-Collins, C‑9/12, EU:C:2013:860, paragraph 38, and of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 38).
36 As regards the second criterion, namely that of remuneration granted in return for an activity, it should be emphasised that it cannot be understood in the strict sense of the payment of a sum of money, since the receipt of a package of benefits representing an economic value may be regarded as constituting remuneration (see, to that effect, judgments of 19 December 2013, Corman-Collins, C‑9/12, EU:C:2013:860, paragraph 39, and of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559, paragraph 40).
37 While the subject matter of the franchise agreement which should have been concluded following the contract to enter into a future contract perfectly satisfies the two criteria referred to in paragraphs 35 and 36 of the present judgment, that is not the case with that contract to enter into a future contract, the objective of which was to conclude a future franchise agreement and preserve the confidentiality of the information contained in that contract to enter into a future contract. Moreover, in the absence of any actual activity carried out by the co-contractor, the payment of the contractual penalty cannot be characterised as remuneration.
38 In so far as the contract to enter into a future contract does not require the performance of any positive act or the payment of any remuneration, the obligations arising from that contract to enter into a future contract - in particular the obligation to pay the contractual penalty - cannot fall within the concept of ‘provision of services’ within the meaning of the second indent of Article 7(1)(b) of the Brussels I bis Regulation.
39 That conclusion is not called into question by the argument that the obligation to pay the contractual penalty is closely linked to the franchise agreement which was to be concluded and under which it would be possible to determine the place where the services concerned should have been provided.
40 Such an argument runs counter not only to the requirement of strict interpretation of the special rules of jurisdiction laid down by the Brussels I bis Regulation, as referred to in paragraph 28 of the present judgment, but also to the objectives of foreseeability and legal certainty referred to in paragraphs 26 and 30 of the present judgment.
41 Finally, it should be noted that it is apparent from the system set out in Article 7(1) of the Brussels I bis Regulation that the EU legislature has adopted separate rules of jurisdiction for contracts for the sale of goods and for contracts for the provision of services, on the one hand, and for any other type of contract not covered by specific provisions in that regulation, on the other hand (see, to that effect, judgment of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257, paragraph 42).
42 In that regard, it should be borne in mind that Article 7(1)(c) of the Brussels I bis Regulation provides that ‘point (a) applies if point (b) does not apply’.
43 To broaden the scope of the second indent of Article 7(1)(b) of the Brussels I bis Regulation so as to include any contract to enter into a future contract relating to the future conclusion of a contract for the provision of services would be to circumvent the intention of the EU legislature in that regard and would affect the effectiveness of Article 7(1)(c) and (a) thereof (see, to that effect, judgment of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257, paragraph 43).
44 In the light of the foregoing considerations, the answer to the question referred is that Article 7(1)(b) of the Brussels I bis Regulation must be interpreted as meaning that a contract to enter into a future contract relating to the future conclusion of a franchise agreement which provides for an obligation to pay a contractual penalty based on non-performance of that contract to enter into a future contract, the breach of which serves as a basis for a claim, does not fall within the concept of a contract for the ‘provision of services’ within the meaning of that provision. In such a case, jurisdiction over a claim on which that obligation serves as a basis is determined, in accordance with Article 7(1)(a) of that regulation, by reference to the place of performance of that obligation.
45 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.