251. In matters relating to tort, delict or quasi delict, a claimant may initiate
proceedings “in the courts for the place where the harmful event occurred or may occur”. For the sake of simplicity, we hereafter refer to this category as matters relating to tort. Indeed, the three distinct concepts involved in Article 7(2) BRIbis reflect the existence of different national legal traditions and only means that this provision covers strict, as well as fault-based liability.570 Proximity and good administration of justice both command the existence of such a forum. On many occasions, the Court of Justice has stated that this special jurisdictional ground relies on “a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings”.571 Finally, it must be underlined that Article 7(2) BRIbis designates international, as well as local jurisdiction.
252. The type of actions encompassed within matters related to tort are not limited
to actions for damages. In this sense, the text makes clear that preventive actions fall under the scope of Article 7(2) BRIbis, as it states that proceedings can be started at the place where the harmful event “may” occur. Although there is no space for doubts today, it must be highlighted that the old text of the Brussels Convention did not expressly foresee this possibility. Fortunately, the ECJ came to the rescue in Henkel: in its judgment, the Court of Justice clarified that a preventive action brought by a consumer association in order to prohibit a German trader to use unlawful terms and conditions in his relationship with Austrian consumers fell under the scope of Article 7(2) BRIbis. This solution subsequently crystalized in the BRI. Additionally, negative actions seeking to establish the absence of liability enter the scope of the forum for matters related to tort.572
570 U Magnus and P Mankowski, Brussels I Regulation, European Commentaries on Private International
Law (Sellier European Law Publishers, 2nd edn, 2011), 234.
571 Case C-21/76 Handelskwekerij G. J. Bier BV v Mines de potasse d'Alsace SA [1976] ECR 01735, para
11. See also Case C-220/88 Dumez France SA and Tracoba SARL v Hessische Landesbank and Others [1990] ECR I-00049, para 17; Case C-68/93 Fiona Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v Presse Alliance SA [1995] ECR I-00415, para 19; Case C-364/93Antonio Marinari v Lloyds Bank plc and Zubaidi Trading Company [1995] ECR I-02719, para 10; Réunion Européenne, supra n 517, para 27.
2. Matters Related to Tort
253. In Kalfelis, the ECJ established that two requirements must be met in order
for a claim to be related to tort: first of all, the claim is not covered by Article 7(1) BRIbis on contractual matters, and second of all, the claim must aim at determining the defendant’s liability.573 In other words, the ECJ has opted for a negative and autonomous definition. Hence, in order to ascertain whether an action is a matter related to tort, it is necessary to first determine whether, in light of the European case law, it is contractual in nature. Specifically, in Rudolf Gabriel, the Court of Justice established that national courts have to first examine whether Article 17 BRIbis applies, as it constitutes a lex specialis in relation to Article 7(1) BRIbis. Subsequently, if the case at issue is not a matter related to contracts, then national courts may envisage the application of Article 7(2) BRIbis. Indeed, in order for the latter to apply, the former must necessarily be discarded.574
254. If Article 7(1) and 7(2) BRIbis are mutually exclusive, does it mean that
every action which is not contractual in nature falls under the scope of matters related to tort? It seems that the answer to this question is negative. This may be illustrated by the reasoning of the ECJ in Reichert, a case in which a bank brought an action paulienne against the Reicherts for having transferred the ownership of an immovable property to their son. In its judgment, the Court of justice states that the action at issue is not a matter related to tort, given that it does not aim at establishing the defendant’s liability. Besides, it is unlikely that this action would fall under Article 7(1) BRIbis, as there is not obligation freely assumed either by the bank or the Reicherts. As a result, it appears that only Article 4 BRIbis is available in this case. Apart from those borderline cases, it has to be emphasised that the range of disputes covered by Article 7(2) BRIbis remains broad.575
255. Finally, the ECJ had the opportunity to clarify two important points: first,
different actions, which are nevertheless based on a similar set of facts, cannot be
573 Kalfelis, supra n 518, para 17.
574 Case C-96/00 Rudolf Gabriel [2002] ECR I-06367, paras 33-36. Confirmed by Engler, supra n 532,
paras 29-32.
575 Interestingly, Mankowski drafted a complete list of matters that may fall under the scope of Article 7(2)
BRIbis. Among others, this provision may apply to antitrust matters; unfair commercial practices; copyright, patent or trademark infringements; product liability or non-contractual liability from defective goods; environmental damage; torts committed on the capital markets; and prospectus liability (Magnus and Mankowski, supra n 570, 236-238).
accumulated in a unique forum, even though this is justified by sound administration of justice.576 This unfortunately leads to the fragmentation of litigation.577 Second, the ECJ held that actions related to pre-contractual negotiations fall under the scope of “matters relating to tort”. Specifically, the Court of Justice considers that the breaking off of negotiations do not constitute the breach of an obligation freely assumed by one party towards the other. Rather, it may be a violation of a rule of law, namely the obligation to act in good faith.578
256. The abstract wording of Article 7(2) BRIbis has to be considered in very
different kinds of situations, which might sometimes generate complexities. In light of the above, the case law of the ECJ is an important guideline to understand this provision. In the following paragraphs, we discuss some of the difficulties that have arisen in connection with the application of Article 7(2) BRIbis. These difficulties essentially concern the location of the place where the harmful event occurred.
3. The Place Where the Harmful Event Occurred or May Occur
a. The Dissociation Between the Place Giving Rise to the Damage and its Materialisation
257. In Mines de Potasse d’Alsace,579 an undertaking located in France (Mines de Potasse d’Alsace) discharged chlorides in the waters of the Rhine, which increased their level of salinity. Bier, an undertaking located in the Netherlands and engaged in horticulture, waters and irrigates its seed-beds with these waters. In this context, Bier had to take costly measures in order to limit the damage that poor quality waters made to its plantations. Consequently, Bier and Stichting Reinwater, an association that promotes the improvement of the quality of the waters of the Rhine, initiated proceedings in the Court of first instance of Rotterdam, alleging that the conduct of Mines de Potasse d’Alsace was illegal and caused a damage to Bier’s horticultural business. The Court at Rotterdam declared that it had no jurisdiction under Article 7(2) BRIbis. Indeed, it considered that the place where the damage occurred was located in France. As a result, the claimants
576 Kalfelis, supra n 518, para 21.
577 Gaudemet-Tallon, supra n 503, 174-175.
578 Case C-334/00 Fonderie Officine Meccaniche Tacconi SpA v Heinrich Wagner Sinto Maschinenfabrik GmbH (HWS) [2002] ECR I-07357, paras 24-25.
lodged an appeal in the court of appeal in The Hague, which in turn referred to the ECJ for preliminary ruling. In particular, the referring court asks the Court of Justice whether “the place where the damage occurred” under Article 7(2) BRIbis should be interpreted as the place where the damage became apparent or the place where the event having the damage as its sequel occurred.
In its judgment,580 the ECJ held that the two above-mentioned connecting factors were of equal importance. Depending on the circumstances, they may both allocate jurisdiction to courts which are well placed for gathering of evidence or conducting proceedings. On the one hand, in case the place giving rise to the harmful event is favoured, it is likely that Article 7(2) BRIbis would consequently lose its effect, as this place would often coincide with the domicile of the defendant (Article 4 BRIbis). On the other hand, accepting the place where the damage manifested itself as the only connecting factor would impede courts that are close to the cause of the damage to have jurisdiction. As a conclusion, the ECJ considered that the claimant might initiate proceedings either in the courts of the place where the damage occurred (Erfolgsort), or in the courts of the place where the event giving rise to the harmful event took place (Handlungsort).
b. Materialisation of the Damage in Various Member States
258. In Shevill, the Court of Justice was confronted for the first time with a
damage, which materialised in more than one Member State. In this context, the ECJ had to assist the referring court to determine where the place of the damage was. The facts of the case can be summarised as follows:581 Press Alliance, a publisher located in France,
published various press articles regarding Fiona Shevill, a national domiciled in the United Kingdom, and Chequepoint, a bureau de change and her former employer whose seat was in France. These press articles were published in France-Soir, which is essentially distributed in France. Considering that these articles were defamatory, as they implied that they had participated in drug trafficking and money laundering, Miss Shevill and Chequepoint –followed by its sister company operating in the United Kingdom, Ixora Trading Inc, and its mother company located in Belgium– brought proceedings for damages suffered in the United Kingdom against Press Alliance in the British courts.
580 Ibid, paras 15-25.
In the circumstances such as the ones in the case at issue, the Court of Justice held that the place of the event giving rise to the harmful event corresponds to the location where the publisher is established. Indeed, this is where the press article was issued and put into circulation.582 As for the place where the damage actually materialises, it has to be located where the defamatory article was distributed and where the victim alleged to have suffered injury to his/her reputation.583 Importantly, the ECJ pointed out that the court of the place of the event giving rise to the damage has jurisdiction to rule on the whole damage. However, the court of the place where the damage occurred has a limited territorial jurisdiction: it can only rule on the harm that took place within the State where the court seised is established.584 In this sense, the Court of Justice departs from German law, which allows courts to order compensation for the whole damage, whatever the basis of their jurisdiction.585 As the Advocate General Darmon states, this solution would certainly encourage forum shopping. Besides, it is doubtful that the court of the place where the damage materialised has sufficient proximity with the dispute to rule on it in its entirety.586 Nevertheless, it must be admitted that the solution of the Court of
Luxembourg might trigger conflicting judgments.587
582 Ibid, para 24. 583 Ibid, para 29. 584 Ibid, paras 25, 30.
585 Shevill, supra n 571, Opinion of Mr. Advocate-General Darmon, para 30. 586 Ibid, paras 67, 71.
E. Special Jurisdiction for Consumer Matters (Section 4)