C-220/88

2. The facts of the main proceedings do not need to be set out in great detail. Two 3. The Cour de cassation then submitted a French companies, Sceper and Tracoba, question for a preliminary ruling by this whose rights are now held by the companies Court which essentially seeks to determine Dumez France and Oth Infrastructure, set whether the solution adopted in its up subsidiaries in the Federal Republic of judgment in Mines de potasse d'Alsace, which Germany for the purposes of a property- allows a plaintiff seeking to establish liability development project. In June 1973 the in tort or delict, to choose between the German banks which had granted financing courts for the place where the event giving to the German promoter (Hessische rise to the damage occurred and those for Landesbank, Gebrüder Röchling Bank and the place where the damage took place, can Lübecker Hypothekenbank) decided to be relied on by the indirect victims of the terminate the loan contracts. The promoter damage; if that is the case, those victims was put into receivership under the super­ would, according to the national court, be vision of the court, as were the two German entitled to commence proceedings before subsidiaries of Sceper and Tracoba. The two the courts for the place where they are French companies brought an action before domiciled.

be said that the place where 'ricochet' absence, under the system of the damage occurs is the same as the place of Convention, of a general ground of juris­ the victim's domicile? In order to answer diction based on related actions. 7 that question, after considering whether or not the solution adopted in Mines de potasse d'Alsace should be applied to 'ricochet' 8. The United Kingdom commentators have damage, I must consider the separate also regarded the Court's decision as being question of determination of the place of very general application. 8However, the where the damage to an indirect victim fact has not escaped the attention of some actually occurs. commentators that the solution adopted by the Court did not exclude the eventual adoption of specific rules for particular 9 5. With regard to the first aspect of the torts, for instance defamation by the press. problem, let me say straight away that in my Attention has also been drawn to the view there is nothing in that judgment to difficulty of determining the place of injury 10 support the view that the solution which it in the case of purely financial losses. adopts is not to apply to 'ricochet' damage. On the contrary, the Court stated: 9. The same generality has been attributed to the judgment in Portugal 11 and in 12 'To exclude one option seems all the more Spain. I should point out, however, that undesirable in that, by its comprehensive according to certain authors, such as Mr form of words, Article 5(3) of the Desantes Real and Mrs Jallès, the solution Convention covers a wide diversity of kinds adopted in the judgment is linked above all of liability'. 4 with the specific problem of determining

the Convention itself. 6Mr Huet associates 10 — D. Lasok and P. A. Stone, op. cit., consider that ' ... in the case of purely financial loss, determination of the place of himself with the latter view and deplores the injury is likely to present particular difficulties'. 11 — M. I. Jallès: 'O afloramento de supranacionalidade num caso de poluição rransfrontetras', Revista de direito e 4 — Case 21/76, supra, paragraph 18. economia. Ano 11/1976, No 2, p. 409; see in particular p. 5 — Dalloz Sirey, 1977, B 54, p. 613. 428 et seq. 6 — Revue critique de droit international privé, 1977, 'Juris- 12 — Mr Desantes Real: La competencia judicial en la Comunidad prudence', p. 563. europea, pp. 310 and 311.

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14 — Case 21/76, supra, paragraph 15. 15 — It should be noted that the French Cour de cassation, giving judgment on a question of domestic law on 11 12. Let us remember that in that judgment January 1984 (JCP 1984, IV. 85), took the view that the damage suffered by the indirect victim occurred at the it was stated that: same place as the harmful event. Although, of course, the forum actoris is thus excluded, the judgment may also have rejected an option similar to that adopted in Mines de potasse d'Alsace: see, with respect to the question as a whole, G. Legier: La compétence du tribunal du lieu où le 'the place of the event giving rise to the dommage est subi, Dalloz Sirey, 1979, 'Chronique', p. 161; see also J. Normand: 'Jurisprudence française en matière damage no less than the place where the de droit judiciaire privé', Revue trimestrielle de droit civil, 1984, p. 360: 'In fact the solution adopted by the Second Civil Chamber is seen to be necessary by a process of elimi­ 13 — 'A sentença em apreciação é significativa na medida em que nation, having regard to the somewhat injudicious results está conexada com una questão que começa a pôr-se com which would follow from an excessively detailed analysis. frequência nos nossos dias e relativamente à qual é escassa, In this area, in fact, account must be taken of the diversity senão mesmo nula, a jurisprudência que poderemos of the losses, which do not always manifest themselves at encontrar: referimo-nos a questão da responsabilidade civil the same place, and the plurality of the victims, a factor por danos resultantes da poluição do meio ambiente which adds to the dispersion. The material damage (loss of quando essa poluição assume carácter internacional', M. I. resources) arises at the place of the death, and the Jallès, op. cit., p. 428; 'Quizá, en fin la utilización de la vía emotional loss at the place where those close to the propuesta, aún por explorar, pudiera servirnos de punto de deceased are informed of it. But both depend on the partida para reflexionar sobre el concreto problema circumstances of the case. Death is not always instan­ planteado al Tribunal comunitario: qué criterios deben taneous; it occurs on the way to hospital, to the home of presidir la calficación del concepto hecho daûoso en el the person concerned .... The relatives are not necessarily artículo 5.3, en lo que respecta a la protección general del at hand. They are notified wherever they happen to be, at medio ambiente y, en particular, a la lucha contra la different locations determined by the pattern of their lives, polución fluvial internacional', M. Desantes Real, op. cit., their business or leisure trips. Territorial jurisdiction cannot p. 305. be anchored in such shifting sands.'

20. Thus, the Gerechtshof, s'Hertogen- 20 'to hold here that the place where the bosch, in a judgment of 31 October 1978, 7 State 1 has its seat could be regarded as took the view that the Netherlands courts being "the place where the harmful event had no jurisdiction to hear an action for occurred" would be tantamount to holding compensation for damage suffered by a that, under the Convention, a plaintiff in Netherlands company through a German tort had the option of suing in the courts of company's refusal to conclude a contract, his own domicile, which would be quite since the only factor arising in the inconsistent with the scheme of Article 2 et Netherlands was the ascertainment of the seq. of the Convention'. 18 financial losses caused by the refusal to enter into a contract. The national court distinguished between the causal event, the damage and the assets specifically affected by the adverse financial consequences 17. For reasons which are not relevant here, thereof and held, first, that this Court, in its the Court did not have to express a view on judgment in Mines de potasse d'Alsace, was that point in Rüffer. 19 — 'Chronique de jurisprudence de ta Cour de justice des 16 — Judgment of 16 December 1980 in Case 814/79 (1980] Communautées européennes', Journal du droit interna- ECR 3807 tional, 1982, pp. 463 and 472. 17 — The plaintiff in the main proceedings. 20 — Mecoma BV v Stahlhandel GmbH, Répertoire de juris- prudence de droit communautaire, I-5.3-B7. 18 — Case 814/79, supra. Opinion, p. 3836

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The case 3 October 1978. The case concerned a concerned an action by an Italian company German company which, having allegedly which considered itself the victim of acted in breach of the competition rules in conduct contrary to the competition rules Belgium, was prohibited by a Belgian on the part of German companies in the company from buying motor vehicles. The Federal Republic of Germany, the effect German company considered that the was of that conduct having been to reduce German courts had jurisdiction to hear its the number of sales which it achieved in action in damages. The Oberlandesgericht that country. The Monza court stated that found that any infringement of the compe

21 suffered had jurisdiction. where the damage occurred and the place where it was suffered seems to me to be entirely pertinent. Indeed, it seems to me that the view that the court at the place where a body corporate's seat is situated has jurisdiction, as being the court of the place 22. The Italian courts have taken a similar where the damage occurred, in so far as line. Thus, it was held in a judgment of the that is the place where the financial losses

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light on the question before us today. The domicile. That has happened in actions for third indent of Article 46 of the new French damages for defamatory publications. Code of Civil Procedure referred originally to the court 'within whose judicial district the damage is suffered'. Certain courts, having regard to the element of continuity 28. Similarly, there are instances of refusal inherent in the words 'is suffered', inferred to take account of the place where the that the victim of physical injury suffered materiality of the damage was merely ascer­ damage at his domicile and that the court 28 tained. within whose judicial district the victim 24 resided therefore had jurisdiction. Other 25 courts, however, took the opposite view.

29. Legal writers in the United Kingdom appear to take the same view. Thus, Mr Collins, in his work entitled The Civil Juris­ diction and Judgments Act 1982, states: 'Even though in one sense a plaintiff may suffer economic loss at the place of its business, 26. A decree of 12 May 1981 removed the that is not sufficient to confer jurisdiction ambiguity entirely by amending the third on that place, for otherwise the place of indent of Article 46, which now refers to business of the plaintiff would almost auto­ the court 'within whose judicial district the matically become another basis of juris­ damage was suffered', which confers on the 29 diction'. provision in question an undeniable 26 character of instantaneity.

30. The position taken by German writers is similar. Mr Kropholler, in his work on European procedural law, stresses that

Tallon Tallon).). The tribunal de Paris adopted the same solution decline to treat the place of the damage as (29 September 1982 and 27 April 1983 1983,, Revue critique de the same as the place of the victim's privé,, 1983 droit international privé 1983,, 'Jurisprudence' 'Jurisprudence',, p. 670 670;; 30 June 1984,, idem 1984 idem,, 1985 1985,, 'Jurisprudence' 'Jurisprudence',, p. 141 ).

. However However,, 1979,, Dalloz Sirey 12 January 1979 Sirey,, 1980 1980. .7070,, note by Y. Lobin Lobin;; that author acknowledges that that reasoning leads to 1979,, Gazelle du Palais 5 October 1979 Palais,, 1979 1979. .2.633 633. . recognition of the forum actors particular. . Paris 25 — In particular Paris,, 9 June 1978 1978,, Gazette du Palais Palais,, 1978. .2.347 1978 347,, note by F Dubois Dubois;; Rouen Rouen,, 28 February 1978 1978,, Thus,, in relation to a dispute between a French artist who 28 — Thus Palais,, 1978 Gazelle du Palais 1978.

. Vaiarely Vaiarely,, dit giving judgment on the old wording of Article 46 of the 'Yvaraľ c Caramel and Ram Ram,, Repertoire de jurisprudence de New Code of Civil Procedure Procedure,, also held that the place communautaire,, I-5 droit communautaire I-5. .3-B10 3-B10)) where the damage is suffered is that where the victim is injured and not that of his domicile where he may may,, 29 — Tīie Civil Jurisdiction and Judgments Act 1982,, 1983 1982 1983,, perhaps,, continue to suffer from his injuries perhaps injuries.

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concentration on the place where the 34. Thus in the Netherlands a remedy is damage occurs subsequently would lead to a available against a third party only to 30 35 move towards the forum actoris. insurers and social security authorities, not to private persons.

31. In other words, the solution which opts for the forum actoris finds little favour. 35. Greece and Denmark also seem Moreover, the very nature of the action by unaware of the concept of 'ricochet' a 'ricochet' victim suggested that we should damage in so far as their legal systems do be even firmer in excluding, in this case, the not, in principle, grant the right to obtain jurisdiction of the courts of the victim's 31 compensation for indirect damage, except, domicile. in certain instances, against the State and 33 employers.

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sorrow') which is not accompanied by any can seek compensation. It must be appreciable physical consequence. observed that Articles 494 and 496 of the However, since the Fatal Accidents Act Portuguese Civil Code provide that the fault 1846 and subsequent statutes, the members of the initial victim can fee set up against the 44 of a victim's family have been able to seek secondary victims. compensation for damage caused by his death, by way of exception to the common-law principle that 'in a civil court the death of a human being could not be complained of as an injury'. 39 It must be 40. Under Italian law, Article 1227 of the added that, under section 5 of the Fatal Civil Code provides for reduction of the Accidents Act 1976, 40 where a person dies compensation if 'il fatto colposo del partly through his own fault and partly creditore ha concorso a cagionare il danno'. through that of a third party, the damages Legal writers are divided on the question which can be awarded under the Fatal whether a fault committed by the initial Accidents Act must be reduced propor­ victim of the harmful event can be set up tionately. 41 against secondary victims. Some consider that the wrongful act referred to in Article 1227 is only that of the initial victim and not that of a 'ricochet' victim who has committed no fault that contributed to the 45 46 damage. Others take the opposite view. 38. Let us now consider the laws of the Italian case-law itself appears to be divided Member States which unreservedly subscribe regarding the autonomy or otherwise of to the concept of 'ricochet' damage. 47 'ricochet' damage.

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immediately related to the direct victim, compensation had family and affective links. suffer non-material or material damage, The Cour de cassation emphasized that the without its being 'necessary for them to damage in question is damage 'by reper­ prove their status as heirs of the deceased. 48 cussion or by ricochet' deriving exclusively from the links between the initial victim and 51 the person seeking compensation. The theory that 'ricochet' damage is separate is thus not accepted in Belgian law. 42. Legal writers are divided between the 49 two differing trends in the case-law. The question of the extent to which 'ricochet' damage is separate and whether the fault of 44. In Luxembourg the Cour de cassation, the initial victim can be set up against the by judgment of 22 December 1988, 52

48 — Tribunal Supremo, Sala I, 20 December 1930, 8 April 51 — Judgment of the combined Chambers, 19 December 1962, 1936, 27 April 1953, 9 June 1969, 26 January 1972, cited Opinion of Mr Advocate General M. Dumon, Revue de by L. Dicz-Picazo and A. Gullon: Sistema de derecho civil, droit pénal, 1962, 63, p. 568; J. T. 1963, p. 673; RGAR Vol. II, Madrid, 1985, p. 625; see also R. de Ángel 1963, Nos 7105 and 7092, note by Dalcq; judgment of 17 Yágüez: La responsabilidad civil, Bilbao, 1988, pp. 317 and June 1963, J. T. 1963, p. 710, RCJB 1964, 446, note by 318; L. Diez-Picazo: Estudios sobre la juńsprudencia civil, Kirkpatrick; judgment of 19 December 1967, Pas. 1968, Vol. I, Madrid, 1979, No 123, p. 296. 537; judgments of 19 October 1976 [Pas. 1977, 213), 15 49 — Some commentators see in the Spanish Law of 6 October April 1980 (Pas. 1004, RGAR 1982, 10499), 6 January 1981 (RGAR 1983, 10682), 10 February 1981 (Pas. 623) and 14 1980 on insurance contracts a condemnation of the April 1981 (Pas. 915), judgments cited by R. André: La decisions of the First Chamber of the Tribunal Supremo, in réparation du préjudice corporel, p. 301. so far as Article 73 allows a direct action against the insurer to be brought only by the victim and his heirs (see, 52 — 34/88 SNCFLv Gillet, Surg and Trasolux. for a more detailed analysis, L. Diez-Picazo and A. Gullon: 53 — In favour: cour d'appel, 18 February 1987, No 8582; cour Sistema de derecho civil, Vol. II, Madrid, 1985, p. 625). d'appel, 1 February 1984; tribunal d'arrondissement, 50 — L. Diez-Picazo: Estudios sobre la jurisprudencia civil, op. Luxembourg, 21 June 1972, Pasicrisie L.22, 299; cour cit., p 300, states, 'Así como en el caso de demanda del d'appel, 6 December 1983, P v Reckinger; tribunal heredero hay una relación directa conducta-daño (muerte), d'arrondissement, Luxembourg, 9 October 1984, Baltes v en el caso de demanda de un no heredero la relación es ya Thinnes; cour d'appel, 10 Julv 1985, No 8109, Bulletin St indirecta conducta-muerte-repercusión de la muerte en el Yves, No 65, p. 50; cour a'appel, 5 January 1987, No actor, lo cual nos debe llevar a valorar decisivamente la 7660; cour d'appel, 1 February 1985, Pasicrisie 1b, 147; participación del agente en el hecho, pues si fue doloso cour d'appel, 19 December 1984, Pasicrisie 26, 241; (homicidio) debe responder de todas sus consecuencias (see tribunal d'arrondissement, Luxembourg, 30 October 1987, Arts 1107, 2, del CC y 104 del Código penal), mientras que No 1775/87; cour d'appel, 14 July 1987, No 266/87; cour si fue debido a culpa o negligencia sólo debe responder del d'appel, 17 February 1989, No 45/89 U. Against: tribunal daño que sea "consecuencia necesaria" (see 1107, 1, d'arrondissement, Diekirch, 11 February 1988, No 50/88; del CQ.' cour d'appel, 22 November 1984, No 6347.

55 — See J. M. Bischoff and A. Huet: Chronique de jumpnidence de la Cour de justice des Communautés européennes, op. cit., p. 472, in which the authors state: 'Even if it is admitted that the idea of favouring the victim was not entirely absent 47. The general philosophy of the in the special jurisdiction established by Anicie 5(3) ... the fundamental rule [of the Convention] despite everything is Convention prompts me to advocate that the jurisdiction of the forum res prevails'. See also P. rejection of a concept according to which Gothot and D. Hollcaux: La convention de Bruxelles du 27 septembre 1968, paragraph 89, p. 50, where it is observed jurisdiction attaches to the court of the that 'although, during the oral argument in Mines de potasse d'Alsace before the Court of Justice some presented Article place where the 'ricochet' victim suffers 5(3) as being inspired by the idea of favouring the damage, that is to say the court of his victim .... the judgment makes no reference to that view and is based essentially on the requirements of the sound domicile. administration of justice'. See also the opinion of Mr Desames Real, who states that: 'Este objetivo general de protección a la víctima de "poluciones transfronterizas" no aparece claramente reflejado ni en la letra ni en el espíritu del articulo 5.3, precepto que, a mi modo de ver, se explica únicamente por consideraciones de buena administración de justicia, “para facilitar la instrucción de la causa por el juez más próximo a los hechos del litigio": nada impide que, por ejemplo, esta parte "debil" perjudicada sea una 48. Even though a move in that direction poderosa multinacional o incluso un Estado', in La competencia judicial en la Comunidad europea, 1986, p. 297. appears attractive, in so far as it would be Por an opposing view, see P. Bourel: Revue critique de droll beneficial to the victim, it must be observed international privé, 1977, p. 571, who considers that the concern to ensure sound administration of justice would that, within the general scheme of the have prompted the authors of the Convention, if they had taken account only of that aspect, to provide for Convention, the concern to preclude the compulsory and exclusive jurisdiction in this area. forum actons and consequently — since it is 56 — See, on this point, T C Hartley: Civil jurisdiction and so easy to change one's domicile — 'forum judgments; he considers whether or not the victim is shopping' is much further to the fore than favoured and concludes 'The two main areas in which this problem is likely to arise arc pollution and product liability: in both cases modern opinion tends to favour the plaintiff', 1984, Chapter 4, p. 52 54 — Cour de cassation, assemblee puniere, 19 June 1981, JCP 1982, No 19712, report by conseiller Ponsard. 57 — Journal de droit international, 1977, p 728, note p. 733.

50. This multiplicity of courts of competent jurisdiction does not seem to me to be 52. Accordingly, the foregoing consider­ without consequences for the other aspect ations lead me to consider that the place of the Convention, namely the recognition where the damage occurs is, for indirect and enforcement of judgments. From that victims, the place where the initial damage point of view, a solution whereby each manifested itself, in other words, the place 'secondary' victim could bring proceedings where the damage to the direct victim before the courts of his domicile encourages occurred. The need to avoid a large number the dispersion of actions and thereby accen­ of possible jurisdictions, with all the disad­ vantages to which I have referred, makes it 58 — Note in Tribunal de grande instance de Paris', 19 June necessary to use as a reference an element 1974, Dalloz Sirey, 1975, p. 638; on the more general problem of related actions and that of lis alibi pendens, see which can be common to all the indirect F. Pontonio: Problemi di competenza e di litispendenza nelvictims, that is to say either the place of the diritto processuale intemazionale con riferimento alla Convenzione di Bruxelles del 27 settembre 1968, Giuffrè, event giving rise to the damage or the place 1978, Voi. XLIII, No 6, p. 811; M. Desames Real: 'La where the initial damage occurred. Such a litispendencia internacional: consideraciones sobre su regu­ lación convencional y futura aplicación en España', Justicia, solution also has the advantage of not over­ 1983, No IV, p. 845; E. Blackburn: 'Lis alibi pendens and forum non conveniens in collision actions after the Civil turning the solutions usually adopted in the Instruction and Judgments Act 1982', Maritime and Commercial Law Quarterly, 1988; P. W. L. Bogaert: 'lus vigilantibus: tactics of forum shopping under the EEC 61 — G. Droz, supra, H. Gaudemet-Tallon, supra; as I have Judgments Convention', European Competition Law already pointed out, there appears to be nothing in the Review, 1988, Vol. 9, editorial. Court's judgment in Mines de potasse d'Alsace to indicate such a consequence. As far as legal persons are concerned, 59 — H. Gaudemet-Tallon: Revue critique de droit international such an approach would result in attributing jurisdiction to privé, 1983, 'Jurisprudence', p. 670. the courts for the locality of the registered office in all 60 — See also, on this point, in favour of jurisdiction limited to iroceedings concerned with tortious liability in so far as a damage occurring within the court's district, G. Droz, Dalloz Sirey, 1977, p. 613, and, in favour of general juris­ f legal person can always claim that that is the place where it ascertained its financial losses and, consequently, suffered diction of the court where the damage is suffered, P. the damage. It is unnecessary to demonstrate the extent to Bourel: Revue critique de droit international privé, 1977, which the forum actoris would then prevail to a very p. 563. considerable extent.

(2) The place where the damage is suffered by such victims must be deemed to be the place where the damage suffered by the initial victim occurred.'

62 — Das EWG-Übereinkommen über die gerichtliche Zuständigkeit und die Vollstreckung gerichtlicher Entschei- dungen in Zivil- und Handelssachen, Systematischer Kommentar von Dr R. Geimer und Prof. Dr R. A. Schütze, Munich, 1983, XVI, p. 633: 'Gleiches gilt für Ersatzansprüche mittelbar Geschädigter. Deren Ansprüche sind akzessorisch zu denen der unmittelbar Geschädigten. Dies wirkt sich auch zuständigkeitrechtlich aus.' 63 — Paragraph 17.

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