Brussels 1 case law

Eurocontrol

A dispute between an individual and the state is NOT a civil and commercial matter when the public body is exercising its public powers (acta iure imperii)

• Confirmed in Sonntag and Steenbergen

Sapir

When the public body is acting in a private capacity, the case can be a civil and commercial matter

Fahnenbrock

Government action needs to have a ‘direct and immediate effect’ on the legal relationship; If there is some ― even formal ― distance such as in the case at hand, the effect is not ‘direct and immediate’ >>no acta iure imperii

Kuhn

CJEU seems to abandon its own Fahnenbrock test and emphasises context

Dinant Bar v Maitre DN

bifurcation possible

Supreme Site Services

back to Eurocontrol: neither legal relationships nor basis and detailed rules of the action show exercise of public powers

Belgische Staat v Movic BV et al

ia pursuit of general interest ≠ exercise of public powers; it has to be examined in concreto whether the public authorities use evidence which they have in their possession as a result of their powers of investigation

Owusu

Flexibile international element

Lindner

Flexible international element

Inkreal

The choice of court in another MS is in itself sufficient to constitute an international element

The regulation allows such clauses even if the contract has no other link to that foreign MS

Commerzbank

International element in consumer contracts → It is sufficient for the consumer title for the international element to surface only after the contract has been concluded

Rich

this exclusion of arbitration does not only apply to the arbitration proceedings themselves, but also to other proceedings where the ‘subject-matter of the dispute’ is arbitration

Allianz v. West Tankers

if however the procedure that relates to the arbitration does not have arbitration itself as subject, the matter does fall within the scope of the Regulation

Gourdain

An action is related to bankruptcy only if it derives directly from the bankruptcy and is closely linked to proceedings for realising the assets of judicial supervision

BVG

The object of the proceedings really has to be subject-matter identified in the Article

Not under art. 24(2): in the classic case of an ultra vires argument by way of defence

Schmidt v Schmidt

A request for voidance of a contract of gift of an immovable property does not fall within the scope of art. 24

Weber v. Weber

It is insufficient that proceedings have consequences for the property → Rei sitae qualification to a large degree is subject to the qualification under the national law

Komu v. komu

an action for declaration of undivided shares of immovable property does fall within the scope of art. 24

Lieber

For tenancies under art. 24, it can be both based on rights in rem and in personam

Reichert

Definition art. 24(1): Proceedings which have as their object rights in rem in immovable property

→ actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holder of those rights with the protection of the powers which attach to their interests

Gaillard

Difference between right in rem and right in personam = effect erga omnes

Web v Web

The action under art. 24(1) must be based on a right in rem and not on a right in personam, save in the case of the exception concerning tenancies of immovable property

Hacker v Euro-Relais

To fall under art. 24 (1) “tenancies'“, it must really be a tenancy and + Pacht is ook huur

Hassett

art. 24(2): Only re life and death of companies and existence or not of the decisions of their bodies

Hassen

art. 24(4): Action seeking an order requiring the person formally registered as proprietor of a Benelux mark to make a declaration to the authority that she has no entitlement to the mark and that she waives registration as the proprietor of that mark: not caught by A24(4)

Chugai v UCB

DNIs (denial of infringement) not caught by A24(4), yet the judge needs to identify the core DNA of the suit: claimants may seek to circumvent A24(4) by carving out validity claims

Ilsinger

art. 17: “contract” → There must be an element of reciprocity

Benincasa

The concept of “consumer'“ must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and aim of that contract and not to the subjective situation of the person concerned, since the same person may be regarded als a consumer in relaton to certain supplies and as an economic operator in relation to others

Gruber

in case of dual-use, the person invoking the protection needs to show the business use of the purchase is negligible.

Wurth of Petruchova

Focus is on the use of the good or service: pre-existing general business knowledge of the consumer is irrelevant

Schrems

dynamic interpretation of the section, at least in the ‘loss’ sense: from a B2C to a B2B contract

Ryanair v Delayfix

Secondary EU consumer law does not impact on the BIa qualification (separate PIL consumer characterisation)

Those laws may still have an impact on the B2C contracts that do not meet BIa’s consumer criteria yet are B2C contracts under secondary EU law: substantive validity of choice of court under A25 may be impacted by these secondary laws

Pammer Alpenhof

Factors that indicate that a trader directs activity to a consumer's MS

• International nature of activity

• Itineraries from other Member States

• Use of foreign language/currency with booking options

• Intl. phone codes

• SEO targeting other Member States

• Foreign top-level domain (e.g., .fr, .de)

• Reference to international clientele

Mere website access, email/contact info, or use of local language/currency is not enough.

Somafer

Definition of a branch

= a place of business which has the appearance of permanency, has a mangement and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head officie of which is abroad, do not have to deal directly with such parant body transact business at the place of business constituting the extension

Shenavai

“employment”: Durable relation between individual and company, a lasting bond, which brings the worker within the organisational framework of the business

Link between contract and place where the activities are pursued, which determines the application of mandatory rules and collective agreements

Holterman

“Employment” → with regard to the relationship of subordination, the issue whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties

Services for and under the direction of another in return for which he receives remuneration

Osacar v. Rynair (joined cases)

“where the employee usually carries out his work” = “Thus, in such circumstances, the concept of ‘place where the employee habitually carries out his work’ enshrined in Article 19(2)(a) of the Brussels I Regulation must be interpreted as referring to the place where, or from which, the employee in fact performs the essential part of his duties vis-à-vis his employer.”

Kaifer Aislamientos

A valid choice of court requires both a clearly and precisely demonstrated consent to be bound by choice of court

CDC

A choice of court in a contract does not cover non-contractual obligations, unless specifically agree

Powell Duffryn

“In connection with a particular legal relationship” = proximity requirement

→ It seeks to prevent a party from being surprised by the referral to a specified court of all disputes which arise in the relationships which it has with the other party and which may originate in relationships other than that in connection with which the agreement conferring jurisdiction was concluded

Colzani

Choice of court clause must be strictly construed to ensure that the parties have actually consented to the clause and that their consent is clearly and precisely demonstrated

“The purpose of the formal requirements imposed by Article 17 is to ensure that the consensus between the parties is in fact established”

General Terms and condition: Just printed on the back ≠ sufficient; valid if an expressive reference to them is made and this is signed by both parties

Saey Home

The pure confirmation in an invoice may in circumstances indicate consent (“choice of court”) and its expression

→ However: must be proven

Carsontheweb

Click-wrap agreements and expression of consent in choice of court agreements → pop-up GTSCs incl CoC may be durable record of consent (where such consent exists) if the GTCs can be saved and printed prior to conclusion of the contract

Tilman v. Unilever

Click-wrap agreements and expression of consent in choice of court agreements → That there is no box which may be ticked is not conclusive (online context)

Also hyperlink

Segoura

Choice of court: established practice between the parties:

The fact that the purchaser does not raise any objections against a confirmation issued unilaterally by the other party does not amount to acceptance on his part of the clause conferring jurisdiction unless the oral agreement comes within the framework of a continuing trading relationship between the parties which is based on the general conditions of one of them, and those conditions contain a clause conferring jurisdiction.

Maersk

Question wheter a jurisdiction clause in a bill of lading is enforcable against third-party holder

→ Enforcebale if upon acqurring the bill of landing, the third party is subrogated (determined by national law that is determined by the PIL of the MS where the court is seised) to all rights and obligations of the original parties to the contract

Refcomp

The main principle of privity of choice of court Generally obstructs third-party effect

<=> exceptionally see Maersk

Effer v Kantner

A(7)1 ‘does not require the conclusion of a contract’: it applies even when the existence of a contract is in dispute between the parties

Handte

Art. 7(1): “contract” → which must be interpreted independently, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another

→ “freely consented obligations'“

→ CJEU employs a wide reading of ‘contract’ but never is a ‘contract’ really fully defined by the CJEU

De Bloos

Art. 7(1): “the obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff's action is based.”

• If multiple: choose → Forum shopping? Cherry picking? Reduced by art. 7(1) (b)

Tessili

Art. 7(1): Where is “the place of performance”? → Looking over the fence

It is for the court before which the matter is
brought to establish under the Convention
whether the place of performance is situate
within its territorial jurisdiction. For this
purpose it must determine in accordance
with its own rules of conflict of laws what is
the law applicable to the legal relationship in
question and define in accordance with that
law the place of performance of the
contractual in question

• Harmonsation: Rome I

MSG

Under art. 7(1): parties can choose the place of performance in an agreement

! has to correspond with the actual place of performance

Wood floor solutions

Under art. 7(1): If there are multiple places of delivery: Look at the place of principle delivery

Bier

Introduces the Handlungsort (locus delicti commissi –the place in which a delict (tort) is committed/ event given rise to the damage) /Erfolgort (locus damni – place where the damage occurs) distinction

Dumez France

indirect consequences of harm initially suffered by other legal persons who were the direct victims does not open a new forum

Marinari

In the event of direct and indirect damage impacting one and the same person, the indirect damage does not create an extra gateway

Shevill

If the only gateway which the claimant can make recourse to in the court seised is the LD, then that court may only rule on that part of the damage which occurs in its jurisdiction

E-Date advertising

In case of infringement of personality rights via the internet: additional forum with full jurisdiction for the ‘centre of interests’ (presumed rebuttably to be the habitual residence)

Bolagsupplysningen

E-date extended to legal persons

Centre of interests is the place where it carries out the main part of its economic activities - which is presumed rebuttably to be the place of registered office

Universal Music

In the case of purely economic damage, the location of the victim’s bankaccount in the jurisdiction is in itself not sufficient to offer a gateway under the LD-rule

→ Additional elements linked to that jurisidction are required

Brogsitter

A claim is contractual if determining liability requires interpreting the terms of a contract, even if no formal agreement exists

If the claim is autonomous from any contractual obligation, it may fall under tort (7(2)) → national courts need to asses whether contractual interpretation is necessary

Kainz

art. 7(2) The place where the product was manufactured = the place giving rise to the damages

Kostanjevec

Counterclaims: it is in the interests of the sound administration of justice that the special jurisdiction for counterclaims enables the parties, in the same proceedings and before the same court, to litigate all their claims against each other that have a common origin

Roche

“closey connected”: it is not sufficient that there be a divergence in the outcome of the dispute. The divergence must also arise in the context of the same situation of law and fact (confirmed in Solvay)

→ Factual: national judge has to check (margin of appreciation)

→ marginal review of the substance of the case may be required

Kalfelis

Sole object’ test

→A4’s principle actor sequitur forum rei rule would be too extensively set aside if A8(1) were a flexible means to circumvent it. Hence, at 9:

‘that possibility (to reduce A4’s rule,) might arise if a plaintiff were at liberty to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of the defendants is domiciled’

Gubisch Maschinenfabrik and The Tatry

Art. 29 “same action”:

• •1. ID of parties

  •2. ID of ‘object’ or ‘subject matter’: the end the action has in view (often flips side of the same coin); and

  •3. ID of cause of action: meaning (1) the facts and (2) the rules of law relied on in the action, as identified by the claimant

De caval

A35 cannot be relied on to bring within the scope of BIa, matters which are excluded from it

Reichert and Kockler v Dresdner Bank

A 35 “protected measures”: ‘matters intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought form the court having jurisdiction as to the substance of the case’

Van Uden

A 35 “protected measures”: A ‘real connecting link’ must exist between the subject-matter of the measures sought and the territorial jurisdiction of the MS

Zulikarpasic + Pula Parking

Definition judgement: “For a finding to be qualified as a judgment, it must have been delivered in court proceedings officing guarantees of independence and impartiality and of compliance with the principle of audi alternam partemn

Real Madrid Club de Fútbol, AE v EE, Société Éditrice du Monde SA

it is only if the enforcement of a judgment in the Member State in which enforcement is sought would give rise to a manifest breach of a fundamental right as enshrined in the Charter, that a court of that Member State is required under Article 34(1) and Article 45 of Regulation No 44/2001 to refuse to enforce that judgment or, as the case may be, revoke the declaration of enforceability pertaining to that judgment

Public policy = interpreted restictively → mutual trust and free movements of judgements