Class 8 Flashcards
(13 cards)
Art 7: special jurisdiction
schema
Contract
Sale of goods = place where goods were delivered or where they should have been delivered
Provision of services = place where services are provided or should have been provided
Tort or quasi delict
locus damni
locus delicti commissi
Mixed
Handte
Matters relating to a contract:
It follows that the phrase “matters relating to a contract”, as used in Article 5(1) of the Convention, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another.
Where a sub-buyer of goods purchased from an intermediate seller brings an action against the manufacturer for damages on the ground that the goods are not in conformity, it must be observed 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.
CJEU employs a wide reading of ‘contract’ following Handte’s ‘freely consented obligations’ but never is a ‘contract’ really fully defined by the CJEU
De Bloos
The place of performance of the obligation in question
It follows that for the purposes of determining the place of performance within the meaning of Article 5, quoted above, the obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff’s action is based
cherry pick the particular contractual right? Forum Shopping?
Tessili
where is the place of performance / looking over the fence
Thus in the case of an action relating to contractual obligations Article 5 (1) allows a plaintiff to bring the matter before the court for the place ‘of performance’ of the obligation in question. It is for the court before which the matter is brought to establish under the Convention
whether the place of performance is situated 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.
Particularities art 7
Under the new A7(1) presumptions, parties may verbatim lock-in a place of performance, which does have to correspond to the actual place of performance. Otherwise it would circumvent A25 (C- 106/95 MSG).
Similarly, if the actual place of performance differs from what was agreed, the latter counts (see EN, now also FR version of the Regulation v the NL version (hb 2.411)
How about reference to INCOTERMS?: frequently not clear enough
Quid ‘mixed contracts’? => look at which part has the most ‘weight’
Or multiple places of delivery? => look at the place of principal delivery
Bier
introduces the locus delicti commissi:
the place in which a delict (tort) is committed/ event given rise to the damage
locus damni:
place where the damage occurs distinction
Shevill
Libel (=false statements damaging reputation)
In the case of an international libel through the press, the injury caused by a defamatory publication to the honour, reputation and good name of a natural or legal person occurs in the places where the publication is distributed, when the victim is known in those places.
the victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for ALL the harm caused by the defamation,
or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule SOLELY in respect of the harm caused in the State of the court seised.
Marinari
Indirect damages:
The answer to the national court’ s question should therefore be that the term “place where the harmful event occurred” in Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Contracting State.
E Date
Add on to Shevill (internet context)
Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests
The place where a person has the centre of his interests corresponds in general to his habitual residence. However, a person may also have the centre of his interests in a Member State in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.
Bolagsupplysningen
e-date extended to legal persons (ook internetcontext)
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
Brogsitter
civil liability claims are matters relating to a contract not to tort
Civil liability claims such as those at issue in the main proceedings, which are made in tort under national law, must nonetheless be considered as concerning ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, where the conduct complained of may be considered a breach of the terms of the contract, which may be established by taking into account the purpose of the contract.
Universal music
purely financial damage
the ‘place where the harmful event occurred’ may not be construed as being, failing any other connecting factors, the place in a Member State where the damage occurred, when that damage consists exclusively of financial damage which materialises directly in the bank account of the applicant and is the direct result of an unlawful act committed in another Member State
Kainz
Product liability
the case where a manufacturer faces a claim of liability for a defective product, the place of the event giving rise to the damage is the place where the product in question was manufactured.
(ldc = place of manufacturing)
