No CrossRef data available.
Article contents
RECENT DEVELOPMENTS UNDER THE BRUSSELS I REGULATION
Published online by Cambridge University Press: 21 September 2020
Abstract
This article considers recent CJEU case law on the Brussels I Regulation. Two aspects of Article 7(1) (which applies to matters relating to a contract) are considered: the first is whether the contract must be between the parties to the case; the second is whether membership of an association should be regarded as constituting implied consent to be bound by decisions of the association so that jurisdiction to enforce them may be taken under Article 7(1). The article also discusses recent case law on who counts as a ‘consumer’ in terms of Article 17.
Keywords
- Type
- Shorter Articles
- Information
- Copyright
- Copyright © The Author(s) 2020. Published by Cambridge University Press for the British Institute of International and Comparative Law
References
1 Art 7(1)(b) goes on to lay down rules for determining where the place of performance is.
2 Case C-26/91, [1992] ECR I-3967 34.
3 Handte France appeared to be the subsidiary of Handte Germany, but this was not certain.
4 It was said that it did not comply with the rules on hygiene and safety at work and was unfit for its purpose.
5 This was not the only provision on which the French courts might have obtained jurisdiction. As was pointed out by Advocate General Jacobs in para 5 of his Opinion, there were several other provisions which might, depending on the facts, have been applicable. These were art 5(3) of the Brussels Convention (matters relating to tort), art 5(5) of the Convention (branch, agency, or other establishment: Handte France was also a party to the proceedings), art 6(1) (multiple defendants) and art 6(2) (third-party proceedings).
6 A similar rule also applied in the law of Belgium and of Luxembourg. For a discussion of the law of France, Belgium and Luxembourg, see per Advocate General Jacobs at para 20 of his Opinion: ECLI:EU:C:1992:176.
7 Para 15 of the judgment.
8 Para 20 of the judgment.
9 Para 21 of the judgment.
10 Case C-249/16, ECLI:EU:C:2017:472.
11 Advocate General Bot took the view that the rights inter se of the two debtors were inseparable from the relationship between the debtors and the creditor. He also pointed out that under art 16 of Rome I, if a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim, the law governing the debtor's obligation towards the creditor also governs the debtor's right to claim recourse from the other debtors. The CJEU took up this point in para 32 of the judgment.
12 Joined Cases C-274/16, C-447/16 and C-448/16, ECLI:EU:C:2018:160.
13 Reg 261/2004.
14 Para 61 of the judgment in flightright, citing paras 31 and 33 of the judgment in Kareda.
15 Reg 261/2004, art 3(5), second sentence.
16 Case C–215/18, ECLI:EU:C:2020:235.
17 Case C-337/17, ECLI:EU:C:2018:805.
18 Case C-722/17, ECLI:EU:C:2019:577.
19 Para 61 of the judgment in flightright, citing paras 31 and 33 of the judgment in Kareda.
20 See para 10 of the judgment in Handte.
21 See per Advocate General Jacobs at para 22 of his Opinion, citing Case 9/87, Arcado v Haviland [1988] ECR 1539, at paras 10 and 11 of the judgment.
22 In Advocate General Jacobs’ view, this was the essential issue in the case: see paras 6ff of his Opinion.
23 The characterisation of a claim for jurisdictional purposes does not affect the basis on which it will be decided as a matter of substantive law. As Advocate General Jacobs said at para 24 of his Opinion: ‘A court that acquires jurisdiction under Article 5(1) [now Article 7(1)] is not prevented by the Convention from proceeding with the action on the basis that it is delictual and a court that acquires jurisdiction under Article 5(3) [now Article 7(2)] is not prevented by the Convention from proceeding with the action on the basis that it is contractual.’ However, if it does proceed on the basis that the claim is contractual, the question of choice of law arises. It is not clear whether a claim in contract can be successful in the Handte situation unless both contracts are governed by a system of law that adopts the French solution. On the facts of Handte, the contract between Handte Germany and Handte France would today be governed by German law unless there was a choice-of-law clause: Rome I, art 4(1)(a). German law does not adopt the French solution.
24 See paras 25–39 of the Opinion.
25 Case C-343/19, ECLI:EU:C:2020:534.
26 Case C-364/93, EU:C:1995:289.
27 At para 31 of the judgment.
28 Para 32 of the judgment.
29 Kronhofer, Case C-168/02, EU:C:2004:364; Kolassa Case C-375/13, EU:C:2015:37; and Löber Case C-304/17, EU:C:2018:701.
30 Para 33 of the judgment.
31 Para 34 of the judgment.
32 Case C-25/18, ECLI:EU:C:2019:376.
33 Česká spořitelna, Case C-419/11, EU:C:2013:165, at paras 46 and 47; Kolassa, Case C-375/13, EU:C:2015:37, at para 39; ÖFAB, Case C-147/12, EU:C:2013:490, at para 33; and Austro-Mechana, Case C-572/14, EU:C:2016:286, at paras 35 and 36.
34 Peters Bauunternehmung, Case 34/82, EU:C:1983:87, at paras 13 and 15; Powell Duffryn, Case C-214/89, EU:C:1992:115, at para 15; and Engler, Case C-27/02, EU:C:2005:33, at para 47.
35 Para 29 of the judgment in Kerr.
36 Case C-421/18, ECLI:EU:C:2019:1053.
37 Para 34 of the Opinion: ECLI:EU:C:2019:86.
38 Although the rules apply in principle only to claims in contract, they can also apply to claims in tort if the claim in tort is indissociably linked to a contract concluded between the consumer and the seller or supplier: AU v Reliantco Investments, Case C-500/18, ECLI:EU:C:2020:264.
39 Brussels 2012, art 17(1).
40 What this entails is spelled out in more detail in the Regulation.
41 Brussels 2012, art 17(3).
42 The text does not expressly say this, but it is generally accepted to be the case: See per Advocate General Capotorti in Bertrand v Ott, Case C-150/77, ECLI:EU:C:1978:116, [1978] ECR 1431 at 1450.
43 Brussels 2012, art 18(1).
44 Brussels 2012, art 18(2).
45 Brussels 2012, art 19.
46 Case C-208/18, ECLI:EU:C:2019:825. See also AU v Reliantco Investments, Case C-500/18, ECLI:EU:C:2020:264.
47 The trade was only executed 16 seconds late but, in the FOREX market, 16 seconds is a long time.
48 ECLI:EU:C:2019:3140.
49 C-630/17, ECLI:EU:C:2019:123.
50 This had already been established in the earlier case of Benincasa, C-269/95, EU:C:1997:337, para 17 of the judgment.
51 This had also been established in an earlier case: Schrems, C-498/16, EU:C:2018:37, para 32.
52 Petruchová, C-208/18, ECLI:EU:C:2019:825
53 In Rome I (Reg 593/2008), the definition of a consumer, set out in art 6(1), is very similar to that in Brussels I; however, a number of specific types of contract are expressly excluded, one of which concerns financial instruments: see Rome I, art 6(4)(d). This would have covered the contracts concluded by Ms Petruchová.
54 Petruchová (n 52).
55 Pillar Securitisation, Case C-694/17, ECLI:EU:C:2019:345.
56 ECLI:EU:C:2019:3140 at para 52.