C-814/79

JUDGMENT OF 16. 12. 1980 — CASE 814/79

ambit must therefore be essentially incurred in the removal of a wreck determined by reason of the legal carried out by or at the instigation of relationships existing between the the administering agent in the exercise parties to the action or of the subject- of its public authority. matter of the action. The fact that the agent responsible for 3. The concept of "civil and commercial administering public waterways is matters" within the meaning of the seeking to recover those costs by first paragraph Article 1 of the means of a claim for redress before Convention does not include actions the civil courts and not by brought by the agent responsible for administrative process cannot be administering public waterways sufficient to bring the matter in against the person having liability in dispute within the ambit of the law in order to recover the costs Convention.

In Case 814/79

REFERENCE to the Court under Article 3 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 Hoge Raad der Nederlanden [Supreme Court of the Netherlands] for a preliminary ruling in the action pending before that court between

NETHERLANDS' STATE (Ministry of Transport, Water Control and Con- struction)

and

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure administration of the waterways in the Bight of Watum, which involves inter alia the removal of wrecks. It also stipulates that in regard to the 1. On 26 October 1971 the motor administration of the waterways each vessel Otrate owned by Mr Reinhold signatory to the Treaty shall apply its Rüffer, residing in the district of own law. Hameln/Pyrmont in the Federal Republic of Germany collided in the Bight of Watum with the Dutch motor vessel, Vechtborg and there sank. On the basis of the provisions of the Dutch Law on Wrecks (Wrakkenwet) of 19 June 1934 the Netherlands State had The Bight of Watum is a public the wreck of the Otrate removed and it waterway located in an area over which was brought alongside the floating port both the Kingdom of the Netherlands of Delfzijl. By public notice the mayor of and the Federal Republic of Germany that town sold what was left of the boat claim sovereign rights. By the Ems- and its cargo and subsequently remitted Dollard Treaty of 8 April 1960 these two the proceeds of the sale to the States instituted a working arrangement Netherlands State. On finding that in this area without prejudice to the issue deduction from the proceeds of sale of of sovereignty. Amongst other things the cost of removing the wreck left a that Treaty provides that the debit balance of about HFL 107 000, the Netherlands shall be responsible for the Netherlands State claimed this balance

JUDGMENT OF 16. 12. 1980 — CASE 814/79

(d) Can the 'place where the harmful The Rechtsbank said that it did not have event occurred' be the place where jurisdiction to entertain the application the damage as alleged by the State by the Netherlands State. This ruling was occurred, namely either The upheld on appeal by the Gerechtshof Hague, where the State has its seat [Regional Court of Appeal] of The of government, of Delfzijl (in the Hague. After the Netherlands State had Arrondissement [legal district] of made an appeal in cassation against that Groningen) where the goods judgment the Hoge Raad of the salvaged from the wreck were sold Netherlands decided to stay the by the State revealing to what proceedings and to refer the following extent the costs incurred by the questions to the Court of Justice for a State in removing the wreck were preliminary ruling: not covered?

"(a) Does the concept 'civil and commercial matters' in Article 1 of the Convention include a claim (e) If the Ems-Dollard Treaty is to such as that brought by the State be understood as giving the against Rüffer? If so: Netherlands courts jurisdiction over a claim such as the present one (b) Does the term 'matters relating to (which question is not referred to tort, delict or quasi-delict' in Article the Court of Justice for a pre- 5 (3) include such a claim? If so: liminary ruling) does Article 57 of the Brussels Convention leave scope for the application of the opening (c) What is the effect of Article 5 (3) in words and paragraph (3) of Article a situation where the harmful event 5 regarding jurisdiction?"

2. The judgment making the reference by virtue of a power of a public was registered at the Court on 17 character. The Wrakkenwet gives the December 1979. agent, first, the right to recover the costs of removing the wreck from what In accordance with Article 20 of the remains of the vessel which has been Protocol on the Statute of the Court of removed. It further authorizes recourse Justice of the European Economic against the person responsible for the Community written observations were sinking of the vessel but in this regard it lodged by the Government of the refers to the basic provisions on Kingdom of the Netherlands, restitution and liability which are those represented by E. Korthals Altes, acting contained in the Civil Code. as Agent, by Mr Rüffer, represented by Consequently the legal relationship Mr E. von Waldstein of the Karlsruhe between the parties and the subject- Bar, by the Government of the United matter of the dispute — the making Kingdom of Great Britain and Northern good of damage — is one of a typically Ireland, represented by R. D. Munrow of civil character. the Treasury Solicitor's Office, acting as Agent, and by the Commission of the European Communities, represented by 2. Mr Kuffer thinks that Question (a) as its Legal Adviser A. McClellan, acting as well as Questions (b) and (c) may remain Agent, assisted by J. L. M. Sillevis Smitt, open since the Convention has no Advocate at the Hoge Raad of the application in this case. Netherlands. 3. The Commission of the European On hearing the report of the Judge- Communities observes that there is no Rapporteur and the views of the doubt that, under Netherlands law, when Advocate General, the Court decided to a wreck is removed the agent open the oral procedure without any administering a public waterway acts by preliminary inquiry. virtue of a specific public power which is conferred upon him in the public interest. However that does not necessarily mean that the bringing of a II — W r i t t e n o b s e r v a t i o n s sub- claim for redress as provided by the m i t t e d to t h e C o u r t Wrakkenwet is also based on a specific public power. The bringing of that action may not be very much in the public Question (a) interest but it still enables the burden of any untoward consequences of administration in the public interest to be 1. The Netherlands State points out that passed on to the person liable in law. the Wrakkenwet authorizes the agent The liability in question comes under responsible for administering a public civil law. waterway to remove any wreck constituting a danger or an obstacle to It follows that the claim for redress maritime navigation without having to comes under private law and in do this with the agreement of the owner particular under the law of property. of the wreck or of the person having possession of it. The agent responsible This argument is borne out by certain of for the administration of the public the observations in the Jenard Report waterway is not always necessarily a and the Schlosser Report on the public authority. When removing a exception provided by subparagraph 3 of wreck the agent does not therefore act the second paragraph of Article 1 of the

Brussels Convention on 1968 in the the terms and concepts appearing in the matter of social security. According to Convention must be regarded as those observations the exception referred independent and therefore common to to does not include claims for redress all the Member States, or whether they which social security institutions may must be interpreted according to the bring by virtue of an assignment or a laws, including the rules of conflict laws, legal provision against those who are of the first court before which a matter is liable in civil law for the injury suffered brought, this Government says that it by a person entitled to social insurance favours the second method of resolving benefits. Since a claim for redress the issue in regard to the interpretation brought by an agent administering a of all the special jurisdictions set out in public waterway is analogous to such Article 5 of the Convention, unless there claims it too must therefore come under are special reasons to the contrary. "civil and commercial matters" within the meaning of the first paragraph of Article 1 of the Convention. To support its view it says that nearly all of the jurisdictional criteria found in the Convention relate to concepts which are also found in the national law of the Question (b) Member States for a variety of other purposes than the founding of jurisdiction and that unless, therefore, in interpreting these criteria the court before which a matter is brought applies 1. The Netherlands State observes that its own law, inconsistencies will the liability of the person, by whose fault inevitably result between the meaning or act a vessel has sunk, to indemnify the attributed to a term in the Convention agent administering the public waterway and in the other law administered by the against the costs incurred in removing court. the wreck is governed by Articles 1401 and 1403 of the Dutch Civil Code which deal with tort, delict and quasi-delict. There is therefore no doubt that, in It sets out further grounds which point Netherlands law, it must be classified as to the application of the lex fori. First, a liability in tort, delict or quasi-delict. Article 5, which confers special jurisdictions, is intended to confer jurisdictions on courts which have a particularly close connexion with the circumstances of the dispute. A close connexion requires links not only with 2. The Government of the United the law of the country of the court on Kingdom wishes to submit observations which jurisdiction is conferred. The most only on the definition of the term telling reason for conferring a tort "matters relating to tort, delict or quasi- jurisdiction on the court for the place delict" which is the subject-matter of where a harmful event occurs is that, by Question (b). causing an event to occur in a given place, the person concerned subjects himself to the law operating at that place for all the legal consequences which may Recalling that the Court has not yet flow from the occurrence. The generally dealt with the issue whether assumption of jurisdiction on the

Secondly, if there were a common Community concept of what constitutes "tort, delict or quasi-delict", it might not be the same as the corresponding concepts in national law which differ considerably according to the legal 3. The Commission points out that even systems of the Member States. As a if under Netherlands law the liability in result it would cover some matters which question is treated as a tortious liability, are not actionable in certain countries that does not necessarily mean that that and exclude others which are actionable liability also falls under the concept used in other countries. Such a situation in Article 5 (3) of the Convention. The would not be satisfactory. For example, Court of Justice has not as yet ruled on courts could be given jurisdiction in whether the concept is to be regarded as respect of certain claims which they an independent one or whether it draws could not entertain, or, conversely, its meaning from the corresponding courts could be deprived of jurisdiction concepts used in the different systems of over claims which should necessarily be national law. There is however a certain brought before those courts. The number of judgments of the Court likelihood of discrimination occurring regarding other concepts which appear between litigants is obvious. in Article 5 of the Convention. It is apparent from those judgments that it is desirable to give an unequivocal and consistent meaning to the different concepts used in Article 5 of the Convention so that it is clear when a departure from the general rule laid down in Article 2 is permissible and so Finally, the United Kingdom submits that equality of treatment may be that even if it were acceptable to have a ensured in this respect for all litigants in definition of the concept of a tort, delict the different Member States; a concept or quasi-delict common to all the may acquire a consistent character by Member States, the difficulties of formu- being given an independent meaning: lating a satisfactory definition would this is worth while if a concept has prove insuperable in view of the different different meanings in each system of. sets of circumstances under the legal national law; however, it is not always systems of the nine Member States which possible if those differences are too great would need to be taken into because attaching an independent consideration. meaning to a concept in the Convention

A comparison of the different language (2) Is it necessary to take account of the versions shows that the concept of "tort, fact that that place lies in the delict or quasi-delict" must be territory in which, pursuant to the interpreted in a broad sense and not Ems-Dollard Treaty, the Kingdom limited to a few types of unlawful acts. of the Netherlands is responsible for The concept consists at any rate of a river-police functions? culpable or intentional act or omission, contrary to the law or to unwritten standards of care which causes injury to a third party. In regard to Question (c) (1) the Netherlands State thinks that it would be inconceivable for a court not to be bound by the legal opinion of its own The liability which is the subject-matter State that a specific area belongs to that of the main action has all these char- State. Since the harmful event occurred acteristics and therefore falls within the in an area claimed by both the Kingdom concept of "matters relating to tort, of the Netherlands and by the Federal delict or quasi-delict" within the Republic of Germany, it follows that meaning of Article 5 (3) of the both the Netherlands courts and the Convention. German courts must declare that they can exercise their territorial jurisdictions.

Question (c) Since the Convention does not contain any provision as to areas which are the subject of a dispute between the Contracting States and that such a 1. The Netherhnds State points out that dispute cannot be settled in a civil action, this question presupposes that there are only two possibilites : jurisdiction to entertain a claim such as is the subject-matter of the main action is not determined by the Ems-Dollard Treaty. The converse hypothesis is (a) The place where the harmful event advanced by the Hoge Raad in Question occurred must be considered as (e) in which it mentions that the Court is being located neither in the not asked to interpret the Ems-Dollard Netherlands nor in the Federal Treaty. Republic of Germany, or

(b) it must be considered as being with "good administration of justice" located in both the Netherlands and since it means that the German courts the Federal Republic of Germany. have jurisdiction to entertain actions to recover the costs of removing wrecks which are located in the area the administration of which the Ems-Dollard The first hypothesis can be excluded Treaty has conferred on the Federal since there is no other State which claims Republic of Germany. this area or claims that it is "terra nullius" or "high seas". 2. The Commission first states that it is beyond doubt that the Convention also That only leaves the second hypothesis has application in the area covered by which recognizes the jurisdiction of both the Ems-Dollard Treaty since the area is the Netherlands courts and the German indisputably part of the European courts. territory of the Contracting States within the meaning of the first paragraph of Article 60 of the Convention and of the first paragraph of Article 6 of the Question (c) (2) implies that Question Protocol of 1971 on the interpretation of (c) (1) has been answered in the negative that Convention. The question is and that therefore only one court may therefore only whether the courts of a have territorial jurisdiction. In that case Member State which claims sovereign it must be taken that Article 5 (3) of the rights over the region in question may, Convention clearly assumes that a certain for the purpose of applying the place is always linked to a specific State Convention, regard that area as forming by virtue of the location of that place in part of the territory of its State in spite the territory of that State. This of the opposing claims of another connective criterion may not be applied Member State. in this case and another must be found which could be done with the aid of the Ems-Dollard Treaty. Under that Treaty Since neither the Convention nor the the Netherlands and the Federal EEC Treaty from which that Convention Republic of Germany have not arranged originates dealt with the problem of a division of territorial sovereignty but a some Member States having opposing division of what one may call territorial claims it must be assumed that administrative sovereignty in relation to the attitude adopted in this respect by a certain number of matters. One can the Member States was one of neutrality. therefore say that a certain place is linked to a specific State if it is part of an area in which that State exercises its Therefore, in order to keep within such administrative sovereignty in a specific neutrality, the method of resolving the matter. As far as the administration of issue must affect the rights of each of the the waterways is concerned, the Bight of Member States concerned as little as Watum falls in the area in which the possible. Such a solution could consist in Ems-Dollard Treaty has conferred assuming, as far as the appalication of administrative sovereignty on the the Convention is concerned, that the Netherlands. There are therefore area claimed by both Member States is grounds for saying that the Netherlands part of the territory of each of the courts have jurisdiction. Such a Member States which claim to have conclusion is furthermore in accordance sovereign rights over it.

Question (d) select any court, it can be pointed out that specific provisions in the Wrakkenwet concerning the place at which the removed wreck must be sold 1. The NetherUnds State says that the prevent any "forum shopping". place where the event capable of giving rise to tortious liability occurred and the place where this event caused damage are not the same in the present dispute. 2. Mr Rüffer states that the "place where the harmful event occurred" can only be determined in this case in If the injury consisted of damage caused accordance with the Ems-Dollard to something belonging to the State it Treaty. . could justifiably be argued that the injury occurred at the place where the thing is situated but in this case the injury to the State is solely and exclusively attributable to the fact that it had to pay a certain 3. Having referred back to the case-law sum for the removal of the wreck which of the Court on the definition of the meant a reduction in its assets which term "place where the harmful event have their locality at The Hague. occurred", the Commission asks whether it is conceivable in this case that the place where the damage occurred is not the same as the place of the causative It cannot be argued that the injury occurrence. suffered by the State must have its locality in the Bight of Watum on the grounds that the Bight of Watum is an area in which the State was obliged to take action in regard to the removal of There are certainly circumstances such as the wreck of the Otrate. the failure to remove the wreck on the Notwithstanding the question whether a part of the persons concerned legal concept such as an "obligation" themselves, the refusal or the may actually attach to a specific area, it impossibility on the part of the person is in any case wrong to rely on this in liable to reimburse the expenses of order to fix the costs, which the State removing it, or the insufficiency of the had to pay to the undertaking proceeds of sale of the wreck to cover commissioned to remove the wreck, as those expenses, which would determine arising in that same area. whether damage has been sustained and the extent of it. Those circumstances cannot however be regarded as determi- native in regard to the place where the In the alternative the Netherlands State damage was sustained since in this case argues that the injury was suffered only they are material only by reason of the at Delfzijil where it became apparent wreck of the vessel and the place thereof that the proceeds of sale of the wreck can be precisely determined. If it were were not sufficient to cover the expenses otherwise, the place where the damage of removing it. Only then is it possible to was sustained would be determined by speak of injury. In answer to the more or less arbitrary factors likely to be objection that the argument of the affected by considerations other than Netherlands State would leave an agent purely objective ones. It would then be administering a public waterway free to necessary to indicate a whole number of

This view is confirmed by the authentic Because of the obvious analogy of road interpretation in the Convention of accidents to those on the water the same Accession of 1978 as well as by the considerations which led to the solution Schlosser Report. of cases of the former case are also valid for cases of the latter. If a particular convention does not contain any rules of jurisdiction of an exclusive nature the court before which a matter is brought may derive its jurisdiction either from that particular Question (e) convention or from the Convention of 1968.

1. The Netherlands State takes the view, if only on the basis of the wording of Ill — Oral procedure Article 57 of the Convention which states that "this Convention shall not affect any conventions . . . which, in relation to The Netherlands State, Mr Rüffer and particular matters, govern jurisdiction the Commission of the European . . . " , that the Convention does not cease Communities presented oral argument at to apply if another treaty creates certain the hearing on 8 July 1980. types of jurisdiction. In other words, Article 57 does not preclude the alter- The Advocate General delivered his native application of the rules of the opinion at the sitting on 8 October 1980.

JUDGMENT OF 16. 12. 1980 — CASE 814/79

Decision

1 By judgment of 14 December 1979 which was received at the Court on 17 December 1979 the Hoge Raad [Supreme Court] applied to the Court in proceedings based on Article 1 of the Protocol 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.

NETHERLANDS v RÜFFER

5 The District Court of the Hague before which the matter was brought at first instance declared that it had no jurisdiction to entertain the application. Its ground was the finding that owing to the German flag of the boat which sunk the place where the harmful event occurred, namely the wreck of the Otrate, must be regarded as the Federal Republic of Germany in this case so that jurisdiction to entertain the application lay with German courts by virtue of Article 5 (3) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as "the Brussels Convention"). The decision by that court was upheld by the Gerechtshof [Regional Court of Appeal] of The Hague and the Netherlands State appealed in cassation to the Hoge Raad of the Netherlands. Before ruling on the substance of the matter that court decided to submit several questions to the Court of Justice on the interpretation of the Brussels Convention.

The first question

6 In its first question the Hoge Raad asks the Court to state first of all whether the concept "civil and commercial matters" in Article 1 of the Convention must be construed as including a claim for redress such as that brought in the instant case by the Netherlands State.

7 It is apparent from the case-law of the Court (judgment of 14 October 1976 in Case 29/76 ¿71/[1976] ECR 1541; judgment of 14 July 1977 in Cases 9 and 10/77 Bavaria-Germanair [1977] ECR 1517; judgment of 22 February 1979 in Case 133/78 Gourdain [1978] ECR 733) that the concept "civil and commercial matters' used in Article 1 of the Brussels Convention must be regarded as an independent concept which must be construed with reference first to the objectives and scheme of the Convention and secondly to the general principles which stem from the corpus of the national legal sytems.

i2 In view of those factors the action brought by the Netherlands State before the national court must be regarded as being outside the ambit of the Brussels Convention, as defined by the concept of "civil and commercial matters" within the meaning of the first paragraph of Article 1 of that Convention, since it is established that the Netherlands State acted in the instant case in the exercise of public authority.

1 3 The fact that in this case the action pending before the national court does not concern the actual removal of the wreck but the costs involved in that removal and that the Netherlands State is seeking to recover those costs by means of a claim for redress and not by administrative process as provided

NETHERLANDS v RUFFER

for by the national law of other Member States cannot be sufficient to bring the matter in dispute within the ambit of the Brussels Convention.

i4 As the Court has stated in the authorities cited above the Brussels Convention must be applied in such a way as to ensure, as far as possible, that the rights and obligations which derive from it for the Contracting States and the persons to whom it applies are equal and uniform. By that same case-law such a requirement rules out the possibility of the Convention's being interpreted solely in the light of the division of jurisdiction between the various types of courts existing in certain States: on the contrary it implies that the area of application of the Convention is essentially determined either by reason of the legal relationships between the parties to the action or of the subject-matter of the action.

The costs incurred by the Government of the United Kingdom of Great Britain and Northern Ireland and the Commission of the European Communities which have submitted observations to the Court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Hoge Raad by judgment of 14 December 1979, hereby rules:

The concept of "civil and commercial matters" within the meaning of the first paragraph of Article 1 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters does not include actions such as that referred to by the national court brought by the agent responsible for administering public waterways against the person having liability in law in order to recover the costs incurred in the removal of a wreck carried out by or at the instigation of the administering agent in the exercise of its public authority.

Mertens de Wilmars Pescatore Koopmans