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JURISDICTION IN TORT CLAIMS FOR NON-PHYSICAL HARM UNDER BRUSSELS 2012, ARTICLE 7(2)

  • Trevor C Hartley (a1)
Abstract

Article 7(2) of the Brussels Regulation, 2012 confers jurisdiction, in matters relating to tort, on the courts of the Member State in which the harmful event occurred. In Bier v Mines de Potasse d'Alsace, the CJEU held that this covers both the place where the event which caused the damage takes place and the place where the damage itself takes place. In later cases, however, it held that does not cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by the victim in another Member State. A problem arises if there is no physical harm but only financial loss or some other kind of non-physical harm. It is not always clear in such a situation where the damage occurs. This article considers this problem with special reference to pure financial loss but also two other torts in which no physical harm occurs: defamation and intellectual-property infringement.

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1 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, at 1.

2 Bier v Mines de Potasse d'Alsace, Case C-21/76, ECLI:EU:C:1976:166, [1976] ECR 1735.

3 Dumez v Hessische Landesbank, Case C-220/88, ECLI:EU:C:1990:8, [1990] ECR I-49.

4 ibid, Ruling by the court.

5 Marinari v Lloyds Bank, Case C-364/93, ECLI:EU:C:1995:289, [1995] ECR I-2719.

6 This case differed from Dumez in that in Dumez the initial damage was suffered by other persons, whereas in Marinari it was suffered by the claimant himself.

7 Four Seasons Holdings v Brownlie [2017] UKSC 80; [2018] 1 WLR 192; [2018] 2 All ER 91.

8 CPR 6BPD, para 3.1(6)(a).

9 Lady Hale, Lord Clarke and Lord Wilson.

10 Four Seasons Holdings (n 7) per Lady Hale at paras 35–55.

11 ibid, paras 19–31.

12 It might be argued that, in the non-EU context, this problem could be solved through the doctrine of forum non conveniens: see per Lady Hale in the Four Seasons case (n 7) at para 31. However, the inherent unpredictability of the doctrine (and the problem of funding the litigation which often takes place to decide where the action should be brought) could still cause difficulties for the defendant.

13 DFDS Torline, Case C-18/02, ECLI:EU:C:2004:74, [2004] ECR I-1417.

14 ibid, para 41 of the judgment.

15 ibid, para 43 of the judgment.

16 ibid, para 44 of the judgment.

17 ibid.

18 Kronhofer, Case C-168/02, ECLI:EU:C:2004:364, [2004] ECR I-6009.

19 ibid, para 11 of the CJEU's judgment.

20 On this, see further Dumez v Hessische Landesbank (n 3) at paras 16 and 19 of the judgment.

21 See section II.C.

22 Kolassa v Barclays Bank, Case C-375/13, ECLI:EU:C:2015:37.

23 ibid, para 3 of the final Ruling.

24 ibid, para 51 of the judgment.

25 Universal Music International Holding, Case C-12/15, ECLI:EU:C:2016:449.

26 ibid, para 36 of the judgment. This statement constitutes a subtle distortion of what the CJEU actually said in Kolassa. In para 55 of Kolassa, the CJEU said: ‘The courts where the applicant is domiciled have jurisdiction, on the basis of the place where the loss occurred, to hear and determine such an action, in particular when that loss occurred itself directly in the applicant's bank account held with a bank established within the area of jurisdiction of those courts.’ The phrase ‘in particular’ (‘notamment’ in French) is standard CJEU terminology to indicate that what follows is not necessarily the only circumstance in which the preceding statement applies. In other words, the statement that the courts of the applicant's domicile have jurisdiction is not conditional on the loss occurring in his bank account: the loss occurring in his bank account is simply an added reason for them to have jurisdiction. In paragraph 36 of Universal Music, however, the CJEU said: ‘in Kolassa … the Court found, in paragraph 55 of its reasoning, jurisdiction in favour of the courts for the place of domicile of the applicant by virtue of where the damage occurred, if [lorsque in the French text] that damage materialises directly in the applicant's bank account held with a bank established within the area of jurisdiction of those courts.’ The switch from ‘in particular’ to ‘if’ implies that materialization in the applicant's bank account is a necessary condition for the courts of the domicile to have jurisdiction.

27 ibid, para 37 of the judgment.

28 Footnotes omitted.

29 For a slightly different approach, see the Opinion of Advocate General Bobek in Löber v Barclays Bank, Case C 304/17 (not yet decided by the CJEU). The Advocate General's Opinion may be found at ECLI:EU:C:2018:310.

30 Universal Music International Holding (n 25).

31 ibid, para P 1 of the final Ruling.

32 ibid, para 30 of the judgment.

33 ibid, para 31 of the judgment.

34 ibid, para 32 of the judgment.

35 ibid.

36 ibid, para 38 of the judgment.

37 An appeal lies to the CJEU.

38 Cartel Damage Claims (CDC) Hydrogen Peroxide, Case C-352/13, ECLI:EU:C:2015:335. For another case on a similar matter (decided too late for inclusion in this article), see fly LAL-Lithuanian Airlines, Case C-27/17, ECLI:EU:C:2018:533.

39 ibid, paras 43–50 of the judgment.

40 This ground of jurisdiction would apply only to claims brought by the buyer in question, but all the participants in the cartel could be joined as defendants.

41 Cartel Damage Claims (n 38) paras 52–56 of the judgment.

42 ibid, para 52 of the judgment. In the French text of the judgment, ‘registered office’ is ‘siège social’. In Brussels 2012, art 63(1), the English text uses the phrase ‘statutory seat’ for ‘siège social’; however, art 63(2) states that ‘for the purposes of Ireland, Cyprus and the United Kingdom, “statutory seat” means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place’. This means that, where the forum is not in Ireland, Cyprus or the United Kingdom, ‘registered office’ should be read as ‘statutory seat’. However, the phrase ‘statutory seat’ is misleading in English since it does not refer to the seat of the company as laid down in a statute (Act of Parliament), but to its seat as laid down in the constitution of the company (statut in French).

43 ibid, para 53 of the judgment.

44 In practice, it might be easier to sue one of the defendants in the courts of its domicile and to join the other members of the cartel under art 8(1) of Brussels 2012. Since there will normally be a number of defendants from different Member States, the claimant will usually have a choice of countries in which to bring the proceedings.

45 Cartel Damage Claims (n 38) paras 35–39 of the Opinion. Footnotes have been renumbered.

46 C-364/93, ECLI:EU:C:1995:289.

47 21/76, ECLI:EU:C:1976:166.

48Vermogensschade’ in the terminology of the referring court.

49 Obviously it is different if it is the assets themselves that are the object of the unlawful act. In such a situation it is clear to me that the ‘Erfolgsort’ may very well be the place where the financial damage is suffered. See also, to that effect, Mankowski, P in Magnus, U and Mankowski, P (eds), Brussels IIbis Regulation Commentary (Verlag Dr Otto Schmidt, Cologne, 2016) art 7, para 328.

50 Case 21/76, ECLI:EU:C:1976:166.

51 Case 21/76, ECLI:EU:C:1976:166.

52 However, in ÖFAB, Case C-147/12, ECLI:EU:C:2013:490, the CJEU, while acknowledging the distinction laid down in Bier (see para 51 of the judgment), in the end simply ruled on where the harmful event occurred, without distinguishing between the causal event and the harm.

53 Shevill v Presse Alliance SA, Case C-68/93, ECLI:EU:C:1995:61, [1995] ECR I-415.

54 ibid, para 23 of the judgment.

55 ibid, paras 29 and 30 of the judgment and para 1 of the final Ruling.

56 ibid, para 24 of the judgment.

57 ibid, para 26 of the judgment.

58 This is not a fanciful example: it is believed that some well-known newspapers are produced on a somewhat similar basis.

59 Shevill (n 53) paras 30—33 of the judgment.

60 ibid, para 25 of the judgment.

61 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations, OJ 2007, L 199, at 40, art 1(2)(g).

62 eDate Advertising v X and Martinez v MGN Limited, Joined Cases C-509/09 and C-161/10, ECLI:EU:C:2011:685, [2011] ECR I-10269.

63 ibid, para 52 of the judgment.

64 ibid.

65 ibid.

66 ibid, para 49 of the judgment.

67 Bolagsupplysningen OÜ, Case C-194/16, ECLI:EU:C:2017:766.

68 Besides being the claimant's centre of interests, Sweden was the defendant's domicile. It also appeared to be the place where the defendant was established.

69 Wintersteiger v Products 4U Sondermaschinenbau, Case C-523/10, ECLI:EU:C:2012:220.

70 The final Ruling in Wintersteiger was restricted to the specific circumstances of the case.

71 The jurisdictional rules in Brussels 2012 are largely inapplicable in the case of EU intellectual-property rights; but see Coty Germany, C 360/12, ECLI:EU:C:2014:1318.

72 Pinckney v Mediatech, Case C-170/12, ECLI:EU:C:2013:635.

73 ibid, para 42 of the judgment. However, in Football Dataco, Case C-173/11, ECLI:EU:C:2012:642, the CJEU held that targeting was required in the case of the sui generis intellectual-property right in databases given protection in the European Union under Directive 96/9, OJ 1996, L 77/20.

74 Hejduk v EnergieAgentur, Case C-441/13, ECLI:EU:C:2015:28. See also Hi Hotel HCF, Case C-387/12, ECLI:EU:C:2014:215.

75 The causal act occurred where the defendant company had its seat. This is where the defendant took and carried out the decision to put the photographs online.

76 Cartel Damage Claims (n 38).

77 eDate Advertising (n 62).

78 Wintersteiger (n 69).

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