C-189/87
ECLI:EU:C:1988:312
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KALFELIS v SCHRÖDER
O P I N I O N O F M R ADVOCATE GENERAL D A R M O N delivered on 15 June 1988 *
Mr President, 3. Notwithstanding an opinion 4 put Members of the Court, forward by some, definition of the connection cannot be left to the Contracting States. The terms used in the Convention must be interpreted uniformly 1. The Bundesgerichtshof has referred to the Court two questions — each involving two difficulties — relating to the interpre- tation of the Convention of 27 September 1968 on Jurisdiction and the Enforcement 'having regard to the objectives and the of Judgments in Civil and Commercial general scheme of the C o n v e n t i o n . . . in Matters (which I shall refer to as 'the order to ensure as far as possible the Convention'). The two provisions to be equality and uniformity of the rights and interpreted by the Court are Article 6 (1) obligations arising out of the Convention and Article 5 (3) of the Convention. for the Contracting States and the persons concerned'. 5
I —Article 6 (1)
4. The national court offers an alternative: either jurisdiction is conferred by virtue of 2. It is necessary first to determine, in view Article 6 (1) whenever the claims are similar of the lack of any guidance in that regard in in fact and in law, or else it is conferred Article 6 (1), whether there must be a only where that course is necessary in order connection between the claims made against to avoid irreconcilable judgments in the various defendants. Both legal writers 1 separate proceedings. This alternative and the national case-law 2 on the appears in fact to relate to the distinción in Convention are unanimous in answering German law 6 between ordinary joinder of that question in the affirmative. The raison parties 7 and compulsory joinder of parties. 8 d'être of such a requirement lies in the concern to ensure that the rule actor sequitur forum rei prevails as a principle, so as to 'prevent . . . [Article 6 ( 1 ) ] from being used solely for the purpose of ousting the juris- 5. The criterion to be chosen by the Court diction of the courts of the domicile of one in this case must strike a balance between of the parties'. 3 the following two imperatives:
* Translated from the French. 4 — Droz, op. cit., N o 88, p. 71; Desantes Real: La competencia judicial en la Comunidad europea, 1986, p. 330. 1 — See in particular P. Jenard's Report, OJ C 59, 5.3.1979, p. 26; Droz: Compétence judiciaire et effets des jugements 5 — Case 34/82 Peters v ZNAV [1983] ECR 987. See more dans le marché comun, p. 71, N o 88; Kropholler: generally the decisions of this Court cited below in Europäisches Zivilprozeßrecht, p. 76, Article 6, No 5. Footnote 20. 2 — See, for example, Corte di Cassazione, 6 November 1975, 6 — Comparable with the Italian concepts of 'litisconsorzio Dir. com. Scambi int., 1976, p. 383; Cour d'appel de Paris, facoltativo' and 'litisconsorzio necessario' and the French 28 June 1978, R. c. d. i. p., p. 444, note by Santa Croce. concepts of 'connexité' and 'indivisibilité' — see below, footnote 12. 3 — Gothot and Holleaux: La convention de Bruxelles du 27 septembre 1968, compétence judiciaire et effets des jugements 7 — Einfache Streitgenossenschaft. dans ¡a CEE, p. 62, N o 111. 8 — Notwendige Streitgenossenschaft.
OPINION OF MR D A R M O N — CASE 189/87
(i) ensuring the proper administration of application in view of the infrequency of justice by avoiding, in particular, the such cases. risk of incompatible decisions, 9 and
9. The concept of 'litisconsorzio necessario' (ii) ensuring that the rule laid down in in Italian law provides interesting guidance Article 2 of the Convention continues to as to the objective pursued. 13 It presupposes prevail as a principle. that the petitum or the causa petendi is in part or in whole common to the claims. 1 4It is closely related to the 'einfache Streitge- nossenschaft' of German law and also, albeit with subtle distinctions, to the 'connexité' of 6. The terms 'un lien sérieux' 10 and 'un lien French law. qui ne serait pas artificiel' 11 seem to me too vague in their definition.
10. But it seems to me that an abstract formulation, based in particular on the 7. A subjective criterion, which would concepts of identity of cause and of subject- involve trying to decide whether or not the matter 15 is fraught with real difficulties. In plaintiff was trying to deny any of the particular the concept of cause is one so defendants the right to be sued in the court difficult to apply that I have very serious which would normally have jurisdiction, doubts as to whether it is appropriate to the would be difficult to apply in practice. Legal requirements of an independent interpre- certainty would be poorly served by an tation common to the Contracting States. analysis, as delicate as it would be uncertain, of the plaintiff's intentions.
11. The approach which seems without 8. A definition inspired by the concept of doubt to be the most logical here consists in compulsory joinder 12 as understood in relying upon the third paragraph of Article German and Italian law seems to me 22 of the Convention. That provision excessively restrictive. The Commission describes as related those actions which rightly points out that if jurisdiction under 13 — 'Ratio della norma è quella di favorire soluzioni Article 6 (1) were restricted to cases of armoniche, . . . evitando il pericolo di giudicati anche solo compulsory joinder of parties that provision logicamente contraddittori e rispondendo ad esigenze di economia processuale' — Carpi, Colessanti, Taruffo, op. would virtually cease to have any practical cit., p. 103, No 103. 14 — Ibid. 9 — Jenard Report, supra. 15 — See in particular, with regard to 'connexité', Solus and Perrot, who consider that 'the parallel method must be 10 — Gothol and Holleaux, op. cit., p. 62, N o 111. deliberately abandoned. An examination of the case-law 11 — Cour d'appel, Paris, 28 June 1978, supra, footnote 2. shows that although, where those three elements (party, 12 — There is no doubt that this concept of 'litisconsorzio cause, subject-matter) are not all identical, a situation necessario' (note 6 supra; see Carpi, Golessanti, Taruffo: which is necessarily ruled out by the fact that the two cases Commentario breve at codice di procedura civile, 1984, p. are different, there may exist between connected cases 102, No. 102) must be associated with the 'indivisibilité' or either identity of subject-matter, or identity of cause or 'connexité renforcée' of French law (see Solus and Perrot: even identity of parties, such identity does not appear to be Droit judiciaire privé, 1973, Vol. II, La Compétence, p. a necessary and sufficient precondition for connexity', op. 604, No 552 et seq). cit., p. 588, No 541, and p. 569.
KALFELIS v SCHRÖDER
'are so closely connected that it is expedient irreconcilable. 18 But that does not mean that to hear and determine them together to there is any question of their simultaneous avoid the risk of irreconcilable judgments enforcement being impossible. resulting from separate proceedings'. 15. To emphasize this distinction, it will, without any doubt, be appropriate to refer expressly to 'contradictory decisions' in 12. The prevention of the irreconcilability order to stress, unequivocally, that the of decisions is the ratio legis both of Article choice made favours a solution of sufficient 6 (1) and of the third paragraph of Article breadth.
22. In those circumstances I cannot see any good reason for not transposing the II —Article 5 (3) 'purpose-related' criterion of the latter provision to cases where there are several claims. 16 16. Must the concept of 'matters relating to tort, delict or quasi-delict' mentioned in Article 5 (3) be taken to have an inde- pendent meaning? This Court has not so far disposed of that question. But Mr Advocate 13.
We should note however that the General Warner, in his Opinion in the case Bundesgerichtshof appears to place the need of Rüffer, 19 explained at length and, in my to preclude irreconcilable judgments and view, very accurately, the reasons for which cases of compulsory joinder of parties on an affirmative answer is called for. I shall the same footing. Without doubt, in the confine myself to mentioning the two main case of irreconcilability, the national court reasons which he put forward in support of has in mind 'the impossibility of enforcing
his view. two decisions simultaneously', 17 a much more restrictive concept than a mere conflict of decisions which does not necessarily 17. In the first place, with the exception of prevent each of them from being executed the case of Tessili v Dunlop, 20 whenever the separately. Court has been called upon to say whether a concept incorporated in the Convention must be interpreted by reference to the national legislation or must be given an independent meaning, it has opted for the 14. The following example will illustrate the second solution. 21 It will be recalled that in distinction: two actions commenced sepa- rately against two persons allegedly 18 — Although I consider that it is appropriate to adopt a similar responsible for an accident may give rise to concept of irreconcilability for both Article 6 (1) and the two judgments, one upholding the claim third paragraph of Article 22, I consider on the other hand that the irreconcilability referred to in Article 27 (3) must and the other dismissing it on the ground be understood in a more restrictive sense. The concern in the first case is to preclude difficulties whereas in the second that the characteristics of the damage are it is, by way of exception to the principles and objectives of such that it cannot be repaired. The the Convention, to refuse recognition or an order for enforcement. See judgment of 4 February 1988 in Case decisions are certainly contradictory, if not 145/86 Hoffmann [1986] ECR 645. 19 — Case 814/79 Netherlands v Rüffer [1980] ECR 3807. 16 — See Kropholler: Europäisches Zivilprozeßrecht, 1982, p. 76, 20 — Case 12/76 [1976] ECR 1473.
note 5. See also Lasok and Stone: 'No attempt is made by 21 — Cases 14/76 De Bloos v Bayer [1976] ECR 1497; 29/76 Article 6 (1) to define the degree of connection between LUT Eurocontrol [1976] ECR 1541; 21/76 Bier v Mines the claims against various defendants which will suffice to de potasse d'Alsace [197'6] ECR 1735; 33/78 Somaferv Saar- make it applicable, but assistance may be derived from the Femgas [1978] ECR 2183; 43/77 Industrial Diamond definition of "related actions" given in Article 22 (3) . . . ', Supplies v Riva [1977] ECR 2175; 150/77 Bertrand v Ott Conflict of laws in the European Community, 1987, p. 253. [1978] ECR 1431; 133/78 Courdain v Nodler [1979] ECR See also Born and Fallon: Journal des tribuneaux, 1983, N o 733; 814/79 Ruffer [1980] ECR 3807; 34/82 Peters v
66. Z N A V [ 1 9 8 3 ] ECR 987; and 9/87 Arcado [1988] ECR 17 — Solus and Perrot, op. cit., p. 555, N o 608. 1539 (judgment of 8 March 1988).
O P I N I O N O F MR D A R M O N — CASE 189/87
Peters the Court attributed an independent 21. Academic writers also consider that a meaning to the concept of 'matters relating very prudent approach should be adopted, 22 to contract', and it may be considered that which in the present case merely means that 'matters relating to tort, delict and quasi- no abstract standard should be formulated, delict' constitute the counterpart of that particularly when the Court has not been concept in Article 5 (1). asked to provide one. In any event, the interpretation which I propose that the Court should adopt in answering the last question should enable the difficulty facing the national court to be resolved. 18. Furthermore, in so far as the concepts used in the Convention do not correspond to legal concepts known in each Contracting State — and Mr Advocate General Warner clearly demonstrated that to be the case here — it cannot be 22. The Bundesgerichtshof wishes to know considered that they are based on national to what extent Article 5 (3) confers, as a law. result of connexity, accessory jurisdiction for matters not relating to tort, in an action based on 'claims in tort and contract and for unjustified enrichment'.
19. I would add that a lack of concordance between the meanings attributed to concepts, depending on whether the lex causae is being applied or jurisdiction is being determined under the Convention, 23. Needless to say, such an eventuality can will not militate against the adoption of an arise only where national procedure allows independent interpretation. A court may, the 'overlapping' of grounds for a single drawing a very clear distinction, refer to court action, as appears to be the case in the different juridicial categories for the Federal Republic of Germany, the purposes of determining that it has juris- Netherlands and the United Kingdom. diction and, thereafter, adjudicating upon the.case before it.
24. The difficulty clearly arises only where the Court cannot derive from the 20. Is it in fact necessary, however, to work Convention any direct jurisdiction regarding out a definition for the concept of 'matters the accessory grounds. relating to tort, delict and quasi-delict'? Closely examined, the wording of the 22 — 'It is no less probable that the Court will be unable, in a question submitted by the national court single judgment, to arrive at a comprehensive definition of "matters relating to tort, delict or quasi-delict" as used in does not call for such an analysis. In that Article 5 (3). Even if it is conceded that such a definition is regard, Mr Advocate General Warner made possible — which is doubtful — it would be liable to create fresh difficulties by its excessively abstract nature . . . . The an amusing reference to the difficulties Community meaning will therefore in all probability be inevitably involved in arriving at such a defi- developed progressively, by subtle analysis and at the price of a period of inevitable uncertainty' — Gothot and nition: 'Like the proverbial elephant', he Holleaux in La convention de Bruxelles du 27 septembre 1968, Ed. Jupiter, 1985, pp. 47 and 48, N o 86 (emphasis said, 'tort is easier to recognize than to added). Similarly, see Desantes Real, op. cit., p. 315, define'. Bischof, Clunet, 1982, pp. 470 and 471.
KALFELIS v SCHRÖDER
25. Let me say at the outset that I agree 27. The Court thus formulated the reasons with the Commission's analysis, which which militate in favour of an 'attraction' appears to take the most judicious points towards Article 5 (1), an attraction which from the previous decisions of the Court must extend to the grounds of the claims, and in particular from its judgment in whether they derive from a tort or unjust Peters, 23 in which it stated: enrichment under the lex causae, provided that, as in the present case, they are based 'for the most part on the non-performance of contractual obligations'. 27
'multiplication of the bases of jurisdiction in one and the same type of case is not likely 28. The manifest practical advantages 28 to encourage legal certainty and effective must also be mentioned: the court dealing legal protection throughout the territory of with the contract is best placed to the Community. The provisions of the understand its context and its implications Convention should therefore be interpreted as regards legal proceedings. in such a way that the court seised is not required to declare that it has jurisdiction to adjudicate upon certain applications but has no jurisdiction to hear certain other applications, even though they are closely related'. 24 29. In other words, it is thus appropriate to conclude that where there are overlapping grounds of that kind, only Article 5 (1) will determine the jurisdiction of the court, since the matters relating to contract will 'channel' all the aspects of the dispute.
26. That need to rationalize jurisdiction provides justification 25 for saying that
30. The effect of such a solution thus, by implication but of necessity, is in such circumstances to exclude from the scope of Article 5 (3) even those grounds relied on in a single action which are non-contractual 'because of the close links created by a under the national law in favour of the contract between the parties thereto, it forum designated by Article 5 (l), 29 in so should be possible for all the difficulties far as the action itself constitutes the which may arise on the occasion of the expression of 'difficulties which may arise performance of a contractual obligation to be on the occasion of the performance of a brought before the same court: that for the contractual obligation'. 30 place of performance of the obligation'. 26 27 — See Kropholler, op. cit., p. 64, Art. 5, No 32, who 23 — Case 34/82, supra. considers that 'it is the contractual relationship and not the 24 — Paragraph 17, emphasis added. delictual relationship which is decisive'. 25 — In that connection, the rule that the secondary issue should 28 — See Peters, supra, paragraph 14. follow the first is expressly mentioned in the Court's 29 — But the special provisions of Article 1 of the Protocol judgment of 15 January 1987 in Case 266/85 Shenavai concerning persons domiciled in Luxembourg should be [1987] ECR 239, paragraph 19. noted. 26 — Paragraph 12, emphasis added. 30 — See footnote 26, supra.
OPINION OF MR DARMON — CASE 189/87
31. I therefore propose that the Court should rule as follows:
(i) The application of Article 6 (1) of the Convention of 27 September 1968 requires that the claims should be related in such a way that it is expedient to hear and determine them at the same time in order to avoid the risk of irrec- oncilable judgments resulting from separate proceedings;
(ii) The term 'tort, delict and quasi-delict' in Article 5 (3) of the Convention must be construed independently;
An action based on tort and contract and unjust enrichment is governed exclus- ively by the rules laid down for contractual matters in Article 5 (1) of the Convention.