C-365/88

HAGEN

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 13 December 1989 *

Mr President, in the alternative that Schuhgilde, as its Members of the Court, principal, should be joined in an action on a warranty or guarantee. The Arrondisse- mentsrechtbank dismissed this application on the ground that it did not have to grant A — The facts leave for such an action, since neither of the two companies concerned was domiciled in the Netherlands. As procedural difficulties might arise in the proceedings relating to the action on a warranty or guarantee, the 1. The reference for a preliminary ruling main proceedings might be delayed. submitted to the Court by the Hoge Raad Zeehaghe did not have to be subjected to der Nederlanden (Supreme Court of the such a delay. Netherlands) concerns the interpretation of Article 6(2) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as 'the Convention' or 'the Brussels 4. On appeal, the Gerechtshof (Regional Convention' 1). Court of Appeal), The Hague, upheld the decision of the Arrondissementsrechtbank and added that Article 6 of the Convention only provided for the possibility of bringing 2. In 1984 Kongress Agentur Hagen GmbH an action on a warranty or guarantee but (hereinafter referred to as 'Hagen'), did not require the court to grant leave to Düsseldorf, concluded an agreement with bring such an action. Zeehaghe BV for the reservation of hotel rooms in The Hague. Hagen acted in its own name but at the request and on behalf of Garant Schuhgilde e.G. (hereinafter referred to as 'Schuhgilde'), Düsseldorf. 5. In the appeal on a point of law, the When the reservation was cancelled, Hoge Raad referred to the Court of Justice Zeehaghe BV summoned Hagen to appear three questions for a preliminary ruling in before the Arrondissementsrechtbank order to enable it to decide on the juris- (District Court), The Hague, and claimed diction of the court seised and the admissi- that Hagen should pay damages and interest bility of the action on a warranty or for breach of contract. guarantee.

B — Opinion 10. No support is to be found in the terms of Article 6(2) of the Convention for a restrictive interpretation of this provision. Article 6(2) permits a person domiciled in a 1. Question A Contracting State to be joined as a third party in an action on a warranty or guarantee in the court seised of the original proceedings, regardless whether jurisdiction in the original proceedings is based on 7. Question A reads as follows: Article 2 or on Article 5 of the Convention. Article 6(2) refers simply to 'the court seised of the original proceedings' and not to 'the court having jurisdiction by virtue of Article 'If a defendant domiciled in a Contracting 2'; such a formulation would have been State is sued on the basis of Article 5(1) of necessary, however, to support a restrictive the Brussels Convention in another interpretation. Contracting State, may the court in the latter State derive from Article 6(2) of the Brussels Convention jurisdiction to entertain an action on a warranty or guarantee 11. As the rule in Article 6 of the brought by the defendant against a person Convention is based on the idea of enabling domiciled in a Contracting State other than related actions to be heard by a single court that of the court?' in order to avoid conflicting decisions, the existence of a substantive connection between the original proceedings and the action on a warranty or guarantee is of decisive importance for the interpretation of 8. In other words, the Hoge Raad wishes to Article 6(2). Therefore the basis on which know whether the special jurisdiction the court has jurisdiction in the original provided for in Article 6(2) of the proceedings is irrelevant. Convention applies even if the court's juris- diction in the original proceedings is also based on a special rule of jurisdiction (in this case, Article 5(1) of the Convention), or 2. Question B whether it is limited to cases in which the jurisdiction of the court in the original proceedings is based on the general rule of jurisdiction set out in Article 2 of the 12. Question B reads as follows: Convention.

14. According to Hagen, the French Government and the Government of the Federal Republic of Germany, the admissi- 17. In its written observations, the bility of an action on a warranty or Commission states that its preference is for guarantee must be assessed solely in the the second interpretation. This solution was light of Article 6(2) of the Convention. In straightforward, as the national court's their opinion, Article 6(2) must be inter- discretion was precisely defined by the preted independently and not by reference Convention itself. Furthermore, the second to provisions of national law. This view is interpretation was more likely to result in supported by considerations of procedural the uniform application of Article 6(2) of economy and the sound administration of the Convention. justice. If leave to bring an action on a warranty or guarantee could be refused on grounds other than the intention of disad- vantaging the third party which is referred 18. At the hearing, however, the to in Article 6(2), a plaintiff might be forced Commission changed its mind and explained to bring proceedings in two courts in two why it then preferred the first interpretation. different Contracting States, which would give rise to additional expense, delays and risks. If one of its courts has jurisdiction, a Contracting State is bound to guarantee the 19. It is true that the Commission's second parties full legal protection. This protection interpretation, which accords with the may not be restricted by the application of observations of the other interested parties, national procedural rules. is attractive because of its simplicity. The national court would have to check only whether the express exception in Article 6(2) applied and then decide on the admissi- bility of the action on a warranty or guarantee solely on the basis of the Convention. 15. For its part, the Commission has put forward two alternative interpretations of Article 6(2) of the Convention. According to the first interpretation, the question of 20. On closer inspection, however, this view jurisdiction is only one of the conditions is untenable. Admittedly, it must be held in governing the admissibility of an action on a the first place that the principle of legal warranty or guarantee. The question of certainty within the Community legal order jurisdiction must first be determined in and the objectives pursued by the accordance with Article 6(2); subsequently, Convention under Article 220 of the EEC however, the national court must also Treaty, on which the Convention is based, establish whether the action satisfies the require that the equality and uniformity of

Furthermore, the Court of Justice has acknowledged in its judgments that national procedural rules may be relied upon to 22. Article 6(2) is contained in Title II of supplement the provisions of the the Convention, which governs jurisdiction. Convention. 5 Article 6(2) determines the court which has international and territorial jurisdiction to hear an action on a warranty or guarantee. The international and territorial jurisdiction of a court, however, constitutes only one of 23. Reference to national procedural rules several factors which may be taken into is also to be found in the protocol to the account in order to determine whether an Convention, which by virtue of Article 65 action is admissible but which are governed forms an integral part thereof. Thus Article only in part by the Convention. In this V of the protocol provides that the juris- regard I would refer to the Schlosser diction specified in Article 6(2) in actions on Report, 3 which makes the following obser- a warranty or guarantee or in any other vations on 'other third-party proceedings' 4 third-party proceedings may not be resorted within the meaning of Article 6(2): to in the Federal Republic of Germany. In that State, any person domiciled in another Contracting State may be sued in the courts 2 — See judgment of 15 November 1983 in Case 228/82 Ferdinand M. J. J. Duijnstee v Lodewijk Goderbauer [1983] in pursuance of Articles 68, 72, 73 and 74 of ECR 3663, at p. 3674 et seq. the Code of Civil Procedure (Zivil- 3 — Report on the Convention on the association of the Kingdom of Denmark, Ireland and the United Kingdom prozeßordnung) concerning third-party of Great Britain and Northern Ireland to the Convention notices (Streitverkündung). on jurisdiction and the enforcement of judgments on civil and commercial matters and to the protocol on its inter- pretation by the Court of Justice (OJ 1979, C 59, p. 71, at p. 111). 5 — See judgments of 7 June 1984 in Case 129/83 Siegfried Zeiger v Sebastiano Salinitri [1984] ECR 2397, at p. 2408, 4 — The concept of guarantee is covered by the concept of of 2 July 1985 in Case 148/84 Deutsche Genossenschaftsbank third-party proceedings (see the Jenard Report on the v Brasserie du Pêcheur SA [1985] ECR 1981, at p. 1992, Convention on jurisdiction and the enforcement of and of 4 February 1988 in Case 145/86 Horst Ludwig judgments in civil and commercial matters, OJ 1979, C 59, Martin Hoffmann v Adelheid Krieg [1988] ECR 645, at p. 1.at p. 28). p. 670.

25. Admittedly, Article V is not directly 27. In the section dealing with Question concerned with actions on a warranty or C I shall consider how far such national guarantee but refers merely to the rules on admissibility must themselves be arrangement which takes the place of such interpreted and applied in the light of the actions in the Federal Republic of Germany. Convention. Regardless how the reference made in Article V of the protocol is to be cat- egorized for legal purposes, Article V does at least provide an indication that in a type 3. Question C of action comparable to an action on a warranty or guarantee there may be procedural requirements in addition to the 28. Question C reads as follows: rules of jurisdiction laid down in the Convention. This confirms that Article 6(2) cannot be the last word on the admissibility of an action on a warranty or guarantee. 6 'If question B is answered in the negative, may the court apply the procedural rules of its national law in assessing whether the request for leave to bring the action on a warranty or guarantee should be granted or do the provisions of the Brussels Convention mean that the court must 26. Accordingly, it is possible to draw an consider the request in the light of criteria intermediate conclusion to the effect that it other than those laid down in its national cannot be automatically assumed on the procedural law and, if so, what are those basis of the provisions of Article 6(2) criteria?' governing international and territorial juris- diction that an action on a warranty or

practical effectiveness of the rules of the into account, they would be incompatible Convention. 7 Consequently, national con- with the meaning and purpose of Article ditions governing admissibility may not be 6(2) of the Convention. Since Article 6 applied where they affect areas governed by refers merely to a person domiciled in a the Convention, 8 expressly or by impli- Contracting State, it precludes any cation. difference in treatment between persons domiciled in different Contracting States. A refusal to grant leave to bring an action on a warranty or guarantee therefore may not be based on the fact that the third parties to be joined are established in a Contracting 30. As I cannot give an exhaustive list of State other than that of the court seised of examples here, I would refer to two factors the original proceedings. Similarly, in order which played a part in the main for third parties to be joined to the original proceedings. The Arrondissementsrecht- proceedings in an action on a warranty or bank, The Hague, decided that the action guarantee they need only have their on a guarantee or warranty was inadmissible registered office in one of the Contracting because the third party to be joined was not States. domiciled in the State of the court seised and, if it were to be joined, the decision in the original proceedings would be delayed. 32. It also follows that procedural delays which may occur precisely because the parties to the proceedings are established in different Contracting States cannot be taken into consideration when balancing the 31. Even if national procedural rules conflicting interests of the parties to the permitted such circumstances to be taken original proceedings.

(2) Article 6(2) of the Convention must be interpreted as meaning that, when assessing the admissibility of an action on a warranty or guarantee, reference may be made on a supplementary basis to national procedural rules, provided that those rules do not concern the international or territorial jurisdiction of the court seised of the original proceedings.

(3) Supplementary reference made to national procedural rules must not impair the practical effectiveness of the rules laid down in the Convention on the admissibility of an action on a warranty or guarantee; in particular, reliance may not be placed on the fact that the third party to be joined is domiciled in a Contracting State other than that of the court seised of the original proceedings.'

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