Súdny dvor Európskej únie·Rozsudok·30.11.1976

C-21/76

ECLI:EU:C:1976:166

Súd: Súdny dvor Európskej únie
IČS: 61976CJ0021
Zdroj: eur-lex.europa.eu ↗

JUDGMENT OF THE COURT 30 NOVEMBER 1976 1

Handelskwekerij G. J. Bier B.V. v Mines de Potasse d'Alsace S.A.

(preliminary ruling requested by the Gerechtshof of The Hague)

Case 21/76

Summary

'Convention on jurisdiction and the enforcement of Judgment, article 5 (3) (liability in tort, delict or quasi-delict')

Convention of 27 September 1968 on jurisdiction and the enforcement of Judgments — Pollution of the atmosphere or of water — Dispute of an international character — Matters relating to tort, delict or quasi-delict — Courts having jurisdiction — Special jurisdiction — Place where the harmful event occurred — Place of the event giving rise to the damage and place where the damage occurred — Connecting factors of significance as regards jurisdiction — Right of plaintiff to elect (Convention of 27 September 1968, Article 5 (3))

Where the place of the happening of the as being intended to cover both the place event which may give rise to liability in where the damage occurred and the place tort, delict or quasi-delict and the place of the event giving rise to it. The result is where that event results in damage are that the defendant may be sued, at the not identical, the expression 'place where option of the plaintiff, either in the the harmful event occurred', in Article 5 courts for the place where the damage (3) of the Convention of 27 September occurred or in the courts for the place of 1968 on jurisdiction and the the event which gives rise to and is at the enforcement of Judgments in Civil and origin of that damage. Commercial Matters, must be understood

In Case 21/76

Reference to the Court pursuant to Article 1 of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of Judgments in Civil and Commercial Matters by the Gerechtshof (Appeal Court) of The Hague for a preliminary ruling in the action pending before that court between

1 — Language of the Case: Dutch.

JUDGMENT OF 30. 11. 1976 — CASE 21/76

Handelskwekerij G.J. Bier B.V., of Nieuwerkerk aan den IJssel (The Netherlands), and the Reinwater Foundation, having its registered office at Amsterdam,

and

Mines de Potasse d'Alsace S.A., having its registered office at Mulhouse,

on the interpretation of the meaning of 'the place where the harmful event occurred' in Article 5 (3) of the Convention of 27 September 1968,

THE COURT

composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Serensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges,

Advocate-General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts of the case, the procedure and business of nursery gardening, uses a the observations submitted pursuant to water catchment area surrounding its the Protocol of 3 June 1971 on the property for its water supply and for the interpretation by the Court of Justice of watering and irrigation of its seed beds. the Convention of 27 September 1968 on The surface waters thus used come jurisdiction and the enforcement of principally from the Rhine. The high Judgments in Civil and Commercial salinity of those waters causes damage to Matters may be summarized as follows: the seed beds and Bier is obliged to take expensive measures to limit it.

I — Facts and written procedure The Reinwater Foundation (hereinafter called Reinwater), whose registered office G. J. Bier B.V. (hereinafter called Bier) of is at Amsterdam, exists in order to Nieuwerkerk aan de IJssel (The promote every possible improvement in Netherlands), which is engaged in the the quality of the water in the Rhine

BIER v MINES DE POTASSE D'ALSACE

basin, especially by opposing any French court for the area in which that deterioration in the natural quality of the discharge took place. water. The means whereby it seeks to achieve this purpose consist in particular On 13 June 1975 Bier and Reinwater in bringing legal actions so as to ensure lodged an appeal against that judgment the protection of the personal rights of with the Gerechtshof (Appeal Court) of all those whose environment is affected the Hague, and requested it to hold that by the quality of the water of the Rhine it had jurisdiction to entertain their and, in particular, of those whose claim. livelihood is dependent upon it. Bier and Reinwater relied on Article 5 (3) Bier and Reinwater brought an action of the Convention of 27 September 1968 before the Arrondissementsrechtbank which provides that a defendant (Court of first instance), Rotterdam, domiciled in a Contracting State may, in against the company Mines de Potasse another Contracting State, be sued in d'Alsace, whose registered office is at matters relating to tort, delict, or Mulhouse and which works mines in quasi-delict, in the courts for the place Alsace. This company is alleged to where the harmful event occurred. The discharge more than 10 000 tonnes of Gerechtshof, Second Chamber, felt that chlorides every twenty-four hours the proper course was to apply Article 2 through a waste-flow into the Rhine, or (2) and Article 3 (2) of the Protocol of 3 in any event such quantities of industrial June 1971 on the Interpretation by the waste in the form of residuary salts that Court of Justice of the Convention of 27 the salt content of the Rhine is thereby September 1968 on jurisdiction and the considerably and gravely augmented. Bier enforcement of Judgments in Civil and and Reinwater claimed in particular that Commercial Matters. Accordingly, by the Netherlands court should hold that judgment of 27 February 1976 it decided the discharge of residuary salts into the to stay the proceedings until the Court of Rhine by Mines de Potasse d'Alsace is Justice had given a preliminary ruling on illegal and that the said company must the interpretation of what is meant by, make good the damage which they have 'the place where the harmful event thereby incurred or which they are liable occurred' in Article 5 (3) of the to incur. Convention. In particular, it asked the Court to say whether the meaning is 'the Mines de Potasse d'Alsace, reserving its place where the damage occurred (the defence as to the substance of the matter, place where the damage took place or objected that the Arrondissementsrecht became apparent)' or rather 'the place bank does not have, and more generally, where the event having the damage as its that the courts of the Netherlands do not sequel occurred (the place where the act have, jurisdiction in the matter by virtue was or was not performed)'. of Articles 2 and 3 of the Convention of 27 September 1968 on jurisdiction and The judgment of the Gerechtshof, The the enforcement of Judgments in Civil Hague, was registered at the Court and Commercial Matters. Registry on 2 March 1976.

By judgment delivered on 12 May 1975, Pursuant to Article 5 (1) of the Protocol the Arrondissementsrechtbank held that of 3 June 1971 and Article 20 of the it had no jurisdiction because the event Protocol on the Statue of the Court of that had caused the damage could only Justice of the EEC, written observations be the discharge of the residuary salts were lodged on 5 May 1976 by the into the Rhine in France and therefore Commission of the European under the Convention of 1968 the case Communities, on 6 May by Mines de came under the jurisdiction of the Potasse d'Alsace, the defendant in the

JUDGMENT OF 30. 11. 1976 — CASE 21/76

main action, on 13 May by the arising in this case, cannot be resolved Government of the French Republic and simply by referring to the provisions of on 17 May by the Government of the French and German law from which it Kingdom of the Netherlands. took its inspiration, and in particular to the last paragraph of Article 59 of the The Court, upon reading the report of French code of civil procedure, as the Judge-Rapporteur and upon hearing worded at the material time, and to the Advocate-General, decided to open Article 32 of the German code of civil the oral procedure without a preparatory procedure.

inquiry. The answer must be sought in an interpretation of the Convention alone. II — Written observations lodged with the Court The purpose of the Convention is to facilitate the unimpeded circulation of Mines de Potasse d'Alsace, the defendant judicial decisions within the Community in the main action, points out that it and, with this in mind, to determine the appears from the report drawn up by the international jurisdiction of the Member committee of experts which prepared the States in the judicial sphere.

To this end, Convention of 27 September 1968 on it contains rules concerning direct jurisdiction and the enforcement of jurisdiction, with which the Member Judgments in Civil and Commercial States must comply and to which Matters that the said committee deemed provisions of national law must give way it unnecessary expressly to stipulate in in so far as they are not confirmed. Thus, Article 5 (3) of the Convention whether Article 2 of the Convention lays down the place where the event causing the the general principle that persons damage took place should be the right domiciled in a Contracting State shall be criterion or whether it should be the sued in the courts of that State, and as place where the damage occurred. regards the legal relationships between Instead, it considered it preferable to Member States Article 3 excludes retain a form of words used in several instances of unduly far-reaching legal systems (Germany, France). jurisdiction known to the national legal

systems. By way of exception to this In this respect, it may be remarked that fundamental principle, the Convention Article 10 (1) of the draft Convention on provides that a certain number of special the law applicable to contractual and additional fields of jurisdiction shall exist non-contractual obligations provides that for particular cases. Thus, the intent of non-contractual obligations arising in Article 5 (3) is to render claims based on respect of a harmful event shall be an alleged wrongful act on the part of the governed by the law of the country where defendant subject to the decision of the that event occurred. Article 10 (2), court best placed to verify the facts, as however, makes an exception to this rule, being the court for the place where the where on the one hand there is no conduct complained of occurred.

In this significant relationship between the context, the aim of. the provision is to situation resulting from the harmful bring all litigation born of some event and the country where that event wrongful conduct before one and the occurred, and where on the other hand same court. This is in the interests of the there is a predominant connexion rational administration of justice, and between the said situation and some does not put the plaintiff into a more other country. favourable situation than the defendant.

The problem of interpreting the The contrary opinion would amount to Convention of 27 September 1968, attributing jurisdiction to the courts for

BIER v MINES DE POTASSE D'ALSACE

the place where the plaintiff is negotiations, the interpretation of Article domiciled. The consequence would be 5 (3) can only be based on the purposes that instead of actions springing from and general principles stated in the one and the same wrongful conduct Convention.

doming before one court, the issue would come before a large number of courts in The Convention intended that all actions different countries. This is surely not relating to the same facts should come what the Convention intended and before the same court, thus avoiding a would not accord with the interests of multiplicity of actions in different the rational administration of justice. countries. The purpose of having all the said actions heard before the same court The Court of Justice should therefore is, so far as it is possible, to stop a rule that Article 5 (3) of the Convention situation arising in which contradictory confers no jurisdiction on the court for or incompatible judgments are the place where the damage occurred, recognized or form the basis for the and gives jurisdiction only to the court application for enforcement in the same for the place where the wrongful act State. Quite clearly, this purpose would occurred. not be achieved if jurisdiction were given to the courts for the place where the The Government of the French Republic damage occurred, in a situation where recalls that the Convention of 27 damage caused by the same wrongful act September 1968 is based on Article 220 occurs in several places, and even in of the EEC Treaty. The necessity for several States.

negotiating it became apparent by reason of the profound differences between the The multiplicity of jurisdictions would national laws of the Member States or lead to a situation which might be resulting from bilateral conventions both contrary to justice, both for the plaintiffs and for the defendents. The former in the sphere of the jurisdiction of courts and tribunals and that of the might find themselves in a different or enforcement of judgments. In a joint even contrary legal position depending declaration the Member States were at on their domicile, and the latter would

pains to stress their anxiety to prevent be exposed to a multiplicity of differences of interpretation and also proceedings appertaining to the same conflicts involving claims and event, and in addition those proceedings disclaimers of jurisdiction. might result in contradictory solutions.

Following the principle of the rational The interpretation of the provisions of administration of justice which underlies the Convention must have regard to the the Convention, proof of damage, for all purposes thereof and to the principles its importance, should give way to proof that it has laid down, particularly as that the event giving rise to the damage regards jurisdiction. Such an approach has occurred and is attributable to the would seem to be particularly warranted defendant, without which the latter as regards Article 5 (3). The drafting of cannot be held liable. It is obvious that that provision does not throw light on this proof will necessarily be established whether the court having jurisdiction is more easily by the court for the place the one for the place where the damage where the said event occurred. occurred or the one for the place where the event giving rise to the damage took The expression 'the place where the place. This ambiguity cannot be solved harmful event occurred' appearing in by referring to the preparatory Article 5 (3) of the Convention of 27 documents. Since it is not possible to September 1968 should therefore be read find the answer to the issue in the as meaning 'the place where the event intentions of the parties to the giving rise to the damage occurred'.

JUDGMENT OF 30. U. 1976 — CASE 21/76

The Government of the Kingdom of the the damage first occurred' and 'the law of Netherlands, too, observes that the the place where the damage first became contracting parties to the Convention of apparent', and not the 'law of the place 27 September 1968 intended that the where the unlawful act giving rise to the problem whether Article 5 (3) should be damage occurred'. taken as meaning the place where the event giving rise to the damage took For the purpose of determining the basis place or the place where the damage of jurisdiction, the right approach is to occurred should be resolved by judicial operate a distinction on the basis of the decision. most characteristic aspect of the legally relevant facts, and the country with (a) The Gerechtshof, The Hague, is which that aspect has the most points of wrong in taking the view that a choice contact. The damage resulting from an must be made between these two act or an omission should always be possibilities alone. The Convention itself considered as the predominant element admits of the proposition that more than and thus as the characteristic element. one court can have jurisdiction. There is no reason why Article 5 (3), should not Moreover, where the damage occurs in a be interpreted as meaning that State other than the one where the first jurisdiction is vested both in the court for act took place, the injured party is often the place where the act took place and in at a disadvantage, as regards procedure, the court for the place where the damage compared with the party responsible. In occurred, the choice lying with the particular, the difficulties in establishing plaintiff. The Convention adopted a form the chain of causation between the act of words used by German law and by and the damage, in proving the nature French law amongst others. The case-law and extent of the damage, and in of the German courts, in particular, identifying the parties responsible accepts the proposition that the two increase where a case of an international jurisdictions co-exist. In not drafting character is involved. This imbalance is Article 5 (3) in greater detail the authors reduced to a certain extent by allowing of the Convention no doubt also had in the injured party to bring his action mind the interests of the injured party, to before the court for the place where the whom it would be advantageous to be damage occurred. able to choose the court to have jurisdiction. It should also be noted that the French

courts, interpreting Article 59 of the (b) If it were not accepted that both the French civil code as it stood at the time

court for the place of the first act and the when the Convention was being drawn court for the place where the damage up, have declared that the court for the occurred have jurisdiction, preference place where the damage occurred has should be given to the jurisdiction of the jurisdiction. court for the place where the damage occurred. (c) It may be that the answer to the question which court has jurisdiction is In choosing the word 'event', the authors not the same for all categories of of the Convention of 27 September 1968 wrongful acts. It may depend on the intended to point to something other nature of the wrong. Since the present than the act. By analogy, it may be noted case involves damage caused by that the Convention on the law international pollution, it may be that applicable to products liability, signed at the nature of the wrong requires that the The Hague on 2 October 1973, in using choice of forum be left to the plaintiff. the words 'the state of the place of injury Should it be the case that the means both the 'law of the place where Convention does not allow of this choice,

BIER v MINES DE POTASSE D'ALSACE

the nature of the wrong, in cases of The Commission of the European international pollution, should sway the Communities points out that the issue in favour of the jurisdiction of the expression 'place where the harmful court for the place where the damage event occurred' used by Article 5 (3) of occurred. the Convention of 27 September 1968 does not in any of the language versions In matters concerning the pollution of offer any indication in favour of a given the environment, an act or omission can solution.

be described as wrongful by reason of its harmful consequences rather than by However from the scheme of the reason of the nature of what is done or Convention it is possible to deduce not done in the first place. Such several interpretations: pollution can be due to a wrongful omission and, unlike the damage, it may (a) In favour of the place where the act often be hard to attach such an omission was done (place of the act, to a particular locality in cases where Handlungsort), it may be argued from some distance intervenes between cause the legal point of view that the concept and effect. For this reason also, it would of acting or of failing to act is an appear inexpedient to exclude the essential ingredient of the tortious or jurisdiction of the court for the place delictual act, and the damage is only a where the damage occurred. mere consequence of the performance or non-performance of the act. Moreover The international Convention on civil this solution gives legal certainty to the liability for oil pollution damage, signed person who performs or fails to perform on 29 November 1969, confers exclusive the act. It is enough for him to know the jurisdiction to entertain claims for laws in force in the place in which he damages on the court of the State where acts, and it is unnecessary that he should the damage occurred. It establishes the also be aware of the obligations arising importance attached to the interests of elsewhere in the world from the fact that the injured party concerning the he has or has not performed the act in question as to which courts have question. The latter argument carries all jurisdiction in cases of pollution affecting the more weight where the tortious or several countries. delictual act is subject to a penalty and is thus closely linked to the arguments in Where the damage is caused by several favour of the territorial effects of penal parties established in a number of law. countries, the conferring of jurisdiction on the court for the. place where the From the point of view of procedure, the damage occurred has the advantage that place of the act presents an advantage the injured party can bring all his action when several persons suffer damage due concerning the matter before one and to a single act. In such a case, the same the same court. To a certain extent this act is dealt with by just one court, and encourages the treating of identical this makes it possible to judge the situations alike. various cases according to the same criteria and dispense with a multiplicity These considerations are particularly of procedures. relevant to acts that bring about pollution of the environment in a number of Again, from the point of view of countries. As part of the legal policy to procedure, this solution brings with it a be followed in environmental matters, certainty which is lacking when one the injured party should be put in a takes the place where the damage strong position, in particular by placing occurred as the point of reference. For him in a favourable situation from the while it is often possible to determine point of view of procedure. the place where the act was done, the

JUDGMENT OF 30. 11. 1976 — CASE 21/76

places where the damage may arise are jurisdiction shall follow domicile. Thus unknown more often than not. the jurisdictions mentioned in Article 5 (3) need not necessarily be construed The arguments in favour of the place restrictively. where the act occurs appear to favour the author of the damage, for when there are The concept of the place where the several injured parties he does not have damage occurs is the one adopted by to defend himself before a number of French case-law and by a number of courts. Moreover, where the place of the French legal writers. It is therefore act is also the place of his domicile, he significant that the form of words used in can be sued in the court of his domicile. Article 5 (3) of the Convention corresponds to that employed in French (b) The solution that adopts the place law. As for German law, from which the where the damage occurred (place of the form of words used in the Convention is damage, Erfolgsort) refers to the last link also derived, it recognizes either the in the chain of elements which as a place of the act or the place where the whole constitute a tortious or delictual consequences thereof occurred. act.

From the legal point of view, the (c) One could also propose as a existence of a tortious or delictual act connecting factor the place in which the requires not only the performance or essential aspect of the legal sphere of the tortious or delictual act is located. non-performance of an action, but also the fact that it gives rise to damage. At the present time private international law This criterion of the most significant tends to attribute greater importance to relationship constitutes a refinement of the 'locus delicti commissi' rule. It is making good the damage caused by a tortious or delictual act than to the based on determining the significant wrongful conduct itself. relationship or the predominant connexion between the situation

The place where the damage occurred resulting from the harmful event on the constitutes a satisfactory solution in the one hand and a given country, which is case of strict liability. not necessarily the one where that event occurred, on the other hand. It ensures that where several persons cause damage to the same person or to The Convention allows several elements the same property, as is the case with the in the body of facts and circumstances pollution of the Rhine, they are all which, when taken together, constitute a judged according to the same criterion. tortious or delictual act to be taken into consideration. It may be added that this In the case of a wrong committed against solution coincides with important trends the protection of the environment, the which have recently become apparent in place of the damage is often the domicile private international law concerning the of the injured party. Thus the latter has substantive law applicable. the advantage of being able to bring the author of the damage before the court for The great advantage of this test is that it the place where he is domiciled. always produces satisfactory results.

This interpretation should be considered As against this connecting factor, there is as compatible with the scheme of the the argument that it is of greater interest Convention. The provisions on for the purpose of determining the jurisdiction set out in Article 5 take the substantive law applicable than for trying form of independent provisions existing to decide which court has jurisdiction, alongside the general provisions of and that it is not mentioned in the report Article 2 which state the general rule that on the Convention for 1968.

BIER v MINES DE POTASSE D'ALSACE

(d) German law, so far as regards the especially where compliance with substantive law, applies the solution of Community legislation on the the place most favourable to the party protection of the environment is at who has suffered the damage. This issue, for since such Community law connecting factor, which always favours is directly applicable the injured party the injured party, is, just like the can require a number of courts to connecting factor of the essential aspect apply that law. of the legal sphere, of greater interest for the purpose of applying substantive law Solutions involving concurrent than for that of applying adjective law. connecting factors are, in principle, disadvantageous to the author of the As against this test, it must be noted that damage. The number of courts in which it gains practically no support from the he can be sued puts him into a situation text of the Convention, and that it is of legal uncertainty. rarely applied. (f) Accordingly, Article 5 (3) of the Convention can be interpreted as (e) For the purposes of interpreting meaning that 'the place where the Article 5 (3) of the Convention, there are harmful event occurred' may be good grounds for recommending as a understood as meaning, as well as the solution the concurrence of several place where the act occurred, either the

connecting factors. The principal place of the damage or the place in arguments in favour of this solution are which the essential aspect of the legal as follows: sphere of the tortious or delictual act is — unlike the problem of establishing located, so that where a tortious or connecting factors for the purposes of delictual act has occurred there is a the application of the substantive law, choice between these three places. The where in the end only the substantive arguments in favour of interpreting law of one country can be applied to Article 5 (3) as meaning the place most a given legal situation, it is not favourable to the injured party would not necessary, for the purposes of appear to be sufficiently conclusive. establishing connecting factors in order to find the court with jurisdiction, to refer in this respect to III — Oral procedure a single court with jurisdiction; — The formulation of Article 5 (3) The plaintiffs in the main action, Bier appears to cover the whole of the and Reinwater, represented by J. R. tortious or delictual phase between Voûte, Advocate at Amsterdam and the act which was performed or not Claude Lussan, of the Paris Bar, the performed and the occurrence of the defendant in the main action Mines de damage; accordingly it does not Potasse d'Alsace, represented by C. D. prevent several courts from being Van Boeschoten, Advocate at The Hague, declared to have jurisdiction; and Roland Schwob, Advocate at the — All such jurisdiction as is conferred Mulhouse Bar, the Commission of the by Article 5 is in addition to that European Communities, represented by conferred under Article 2.

Therefore Hendrik Bronkhorst, a Member of its the former jurisdiction should not be Legal Service, submitted their oral construed restrictively; observations at the hearing on 12 — The existence of several courts having October 1976. jurisdiction must be considered as advantageous to the injured party; During that hearing, the undertaking — The existence or several courts with G.J. Bier and the Reinwater jurisdiction can also serve the Foundation argued in particular that as interests of the Community, regards jurisdiction the Convention of 27

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September 1968 contains rules the adopted by recent conventions on purpose of which is to protect the weaker comparable matters, accords with the party, in particular the party injured by a interpretation of the provisions of French tort, delict or quasi-delict. It is with this law on which Article 5 (3) is based, and end in view that Article 5 (3) adopts the brings about an improved administration jurisdiction of the courts for the place of justice in so far as the damage can where the damage occurred. To recognize thus be assessed at the place where it has the jurisdiction of the courts for the become apparent. place where the damage occurred is to put a correct interpretation on the The Advocate-General delivered his Convention, does not introduce 'forum opinion at the hearing on 10 November shopping', corresponds to the solution 1976.

Law

1 By judgment of 27 February 1976, which reached the Court Registry on the following 2 March, the Gerechtshof (Appeal Court) of The Hague has referred a question, pursuant to the Protocol on 3 June 1971 on the interpretation of the Convention of 27 September 1968 on jurisdiction and the enforcement of Judgments in Civil and Commercial Matters (hereinafter called 'the Convention'), on the interpretation of Article 5 (3) of the said Convention.

2 It appears from the judgment making the reference that at the present stage the main action, which has come before the Gerechtshof by way of appeal, concerns the jurisdiction of the court of first instance at Rotterdam, and in general, of the Netherlands courts, to entertain an action brought by an undertaking engaged in horticulture, established within the area for which the court before which the action was first brought has jurisdiction, and by the Reinwater Foundation, which exists to promote the improvement of the quality of the water in the Rhine basin, against Mines de Potasse d'Alsace, established at Mulhouse (France), concerning the pollution of the waters of the Rhine by the discharge of saline waste from the operations of the defendant into that inland waterway.

3 It appears from the file that as regards irrigation the horticultural business of the first-named appellant depends mainly on the waters of the Rhine, the high salt content of which, according to the said appellant, causes damage to its plantations and obliges it to take expensive measures in order to limit that damage.

BIER v MINES DE POTASSE D'ALSACE

4 The appellants consider that the excessive salinization of the Rhine is due principally to the massive discharges carried out by Mines de Potasse d'Alsace and they declare that it is for that reason that they have chosen to bring an action for the purposes of establishing the liability of that undertaking.

5 By judgment delivered on 12 May 1975, the court at Rotterdam held that it had no jurisdiction to entertain the action, taking the view that under Article 5 (3) of the Convention the claim did not come within its jurisdiction but under that of the French court for the area in which the discharge at issue took place.

6 Bier and Reinwater brought an appeal against that judgment before the Gerechtshof, The Hague, which subsequently referred the following question to the Court:

'Are the words "the place where the harmful event occurred", appearing in the text of Article 5 (3) of the Convention on jurisdiction and the enforcement of Judgments in Civil and Commercial Matters, concluded at Brussels on 27 September 1968, to be understood as meaning "the place where the damage occurred (the place where the damage took place or became apparent)" or rather "the place where the event having the damage as its sequel occurred (the place where the act was or was not performed)"?'

7 Article 5 of the Convention provides: 'A person domiciled in a Contracting State may, in another Contracting State, be sued: ... (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred'.

8 That provision must be interpreted in the context of the scheme of conferment of jurisdiction which forms the subject-matter of Title II of the Convention.

9 That scheme is based on a general rule, laid down by Article 2, that the courts of the State in which the defendant is domiciled shall have jurisdiction.

10 However, Article 5 makes provision in a number of cases for a special jurisdiction, which the plaintiff may opt to choose.

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11 This freedom of choice was introduced having regard to the existence, in certain clearly defined situations, of 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.

12 Thus in matters of tort, delict or quasi-delict Article 5 (3) allows the plaintiff to bring his case before the courts for 'the place where the harmful event occurred'.

13 In the context of the Convention, the meaning of that expression is unclear when the place of the event which is at the origin of the damage is situated in a State other than the one in which the place where the damage occurred is situated, as is the case inter inter alia with atmospheric or water pollution beyond the frontiers of a State.

14 The form of words 'place where the harmful event occurred', used in all the language versions of the Convention, leaves open the question whether, in the situation described, it is necessary, in determining jurisdiction, to choose as the connecting factor the place of the event giving rise to the damage, or the place where the damage occurred, or to accept that the plaintiff has an option between the one and the other of those two connecting factors.

15 As regards this, it is well to point out that the place of the event giving rise to the damage no less than the place where the damage occurred can, depending on the case, constitute a significant connecting factor from the point of view of jurisdiction.

16 Liability in tort, delict or quasi-delict can only arise provided that a causal connexion can be established between the damage and the event in which that damage originates.

17 Taking into account the close connexion between the component parts of every sort of liability, it does not appear appropriate to opt for one of the two connecting factors mentioned to the exclusion of the other, since each of them can, depending on the circumstances, be particularly helpful from the point of view of the evidence and of the conduct of the proceedings.

BIER v MINES DE POTASSE D'ALSACE

18 To exclude one option appears all the more undesirable in that, by its comprehensive form of words, Article 5 (3) of the Convention covers a wide diversity of kinds of liability.

19 Thus the meaning of the expression 'place where the harmful event occurred' in Article 5 (3) must be established in such a way as to acknowledge that the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it.

20 This conclusion is supported by the consideration, first, that to decide in favour only of the place of the event giving rise to the damage would, in an appreciable number of cases, cause confusion between the heads of jurisdiction laid down by Articles 2 and 5 (3) of the Convention, so that the latter provision would, to that extent, lose its effectiveness.

21 Secondly, a decision in favour only of the place where the damage occurred would, in cases where the place of the event giving rise to the damage does not coincide with the domicile of the person liable, have the effect of excluding a helpful connecting factor with the jurisdiction of a court particularly near to the cause of the damage.

22 Moreover, it appears from a comparison of the national legislative provisions and national case-law on the distribution of jurisdiction — both as regards internal relationships, as between courts for different areas, and in international relationships — that, albeit by differing legal techniques, a place is found for both of the two connecting factors here considered and that in several States they are accepted concurrently.

23 In these circumstances, the interpretation stated above has the advantage of avoiding any upheaval in the solutions worked out in the various national systems of law, since it looks to unification, in conformity with Article 5 (3) of the Convention, by way of a systematization of solutions which, as to their principle, have already been established in most of the States concerned.

24 Thus it should be answered that where the place of the happening of the event which may give rise to liablity in tort, delict or quasidelict and the place where that event results in damage are not identical, the expresson 'place

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where the harmful event occurred', in Article 5 (3) of the Convention, must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it.

25 The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage.

Costs

26 The costs incurred by the Government of the French Republic, the Government of the Kingdom of the Netherlands and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

27 As these proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the Gerechtshof, The Hague, the decision on costs is a matter for that court.

On those grounds

THE COURT

in answer to the question referred to it by the Gerechtshof, The Hague, by judgment of 27 February 1976, hereby rules:

Where the place of the happening of the event which may give rise to liability in tort, delict or quasidelict and the place where that event results in damage are not identical, the expression '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, must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it.

BIER v MINES DE POTASSE D'ALSACE

The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage.

Kutscher Donner Pescatore

Mertens de Wilmars Sørensen Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 30 November 1976.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE-GENERAL CAPOTORTI DELIVERED ON 10 NOVEMBER 1976 1

Mr President, The essential facts may be summarized as Members of the Court, follows:

1. The proceedings between Bier and The Netherlands undertaking, Bier, Mines de Potasse d'Alsace falls into the which has large nurseries near Rotterdam category of cases raising problems of the irrigated by water from the Rhine, and interpretation of the Brussels Convention the Stichting Reinwater of Amsterdam on Jurisdiction and the Enforcement of instituted proceedings before the Judgments in Civil and Commercial Arrondissementsrechtbank (District Matters. The provision to be interpreted Court), Rotterdam, against the company is Article 5 (3) of the Convention Mines de Potasse d'Alsace, which has its whereby: 'A person domiciled in a registered office in Mulhouse, claiming Contracting State may, in another compensation for damage caused by the Contracting State, be sued ... in matters pollution of the waters of the Rhine on relating to tort, delict or quasi-delict, in the ground that the company has daily the courts for the place where the discharged approximately 11 000 tons of harmful event occured'. In substance the chloride into a canal which flows into Court is asked to decide what is meant the Rhine. It should be recalled that the by the words, 'place where the harmful Stichting Reinwater is required by law to event occurred' which in the said article promote all possible improvements in have the status and function of a the quality of the water in the Rhine criterion of special jurisdiction. basin and to this end it may also institute

1 — Translated from the Italian.