C-68/93

SHEVILL v PRESSE ALLIANCE SA

OPINION OF ADVOCATE GENERAL DARMON delivered on 14 July 1994 *

1. By order of 1 March 1993, the House of tion. Presse Alliance contested the jurisdic­ Lords seeks from the Court a preliminary tion of the court applied to, alleging the ruling on the interpretation of Article 5(3) of absence of any harmful event. The plaintiffs the Brussels Convention of 27 September in the main proceedings limited their claim 1968 on jurisdiction and the enforcement of in the course of the proceedings solely to judgments in civil and commercial matters 1 damages for the harm occasioned in England (hereinafter 'the Convention'), in the context and Wales. of the delicate problem of ascertaining the place where the harmful event occurred in the case of defamation by a newspaper arti­ cle.

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defendant is domiciled, and as an alternative than those, such as the action paulienne in thereto, that 'in matters relating to tort, French law, the purpose of which is not delict or quasi-delict' special jurisdiction is to be conferred on the 'courts for the place where the harmful event occurred'.

6. With the notable exception of the judg­ 'to have the debtor ordered to make good 2 ment in Tessili v Dunlop, in which it was the damage he has caused his creditor by his held that the 'place of performance of the fraudulent conduct, but to render ineffective, obligation' within the meaning of Article as against his creditor, the disposition which 5(1) was to be determined in accordance the debtor has made'. 5

with the national law governing the obliga­ tion in question, the Court has held that the concepts contained in the Convention should generally be given an independent interpretation.

9. In so far as its purpose is to make good 3 the damage resulting from an unlawful act, 7. In its judgment in Kalfelis, the Court an action for defamation falls within the further defined the concept of 'matters relat­ scope of Article 5(3). That is, at least, the ing to tort, delict and quasi-delict' as cover­ prevailing view expressed by academic law­ ing 6 yers.

'No one shall be subjected to arbitrary inter­ ference with his privacy, family, home or 12. This difference of approach in relation to correspondence, nor to attacks upon his the protection of the victim, who is con­ honour and reputation. Everyone has the fronted with a diversity of laws applicable right to the protection of the law against depending on the rules on conflict applied such interference or attacks'. by the forum where the proceedings are brought (a diversity due to the calling in question and, on occasion, the abandonment of the traditional rule requiring the applica­ tion of the law of the place where a tort has been committed) shows, if proof were needed, that the assertion of jurisdiction in 11. Although protection against 'such favour of one forum as against another is not attacks' constitutes a recognized fundamental a neutral matter. 8 principle, there are striking differences between the laws of the Contracting States. Taking as an example the laws of France and England alone, the former requires, as a con­ dition of the tort, that there must be an intention to cause harm, so that there is no tort if good faith is established, whereas under English law the tort (known as 'libel') 13. I now turn to an analysis of the seven is committed where the writing is regarded questions submitted to the Court for a pre­ as defamatory by the jury, without there liminary ruling, which may be reorganized being any requirement for the person under three headings relating respectively to harmed to show actual damage and without the place where the harmful event occurred any consideration of the question of good (Question 1), the possible limitation, where faith. On the other hand, the reverse applies it is recognized that there is more than one in relation to invasion of privacy, protection competent forum, of the jurisdiction of each against which is particularly effective under court within whose judicial district harm has French law. As Professor Badinter has writ­ occurred (Question 3) and the concept of ten: damage, the standard of proof and the pos­ sible consequences of plurality of jurisdiction (Questions 2, 4, 5, 6 and 7).

16. The Mines de Potasse de l'Alsace case concerned cross-border pollution, responsi­ bility for which was thought to lie with an 18. The Court held, therefore, without spe­ undertaking established in France, causing cifically taking into consideration the need to protect the victim, that the expression 'the place where the harmful event occurred' encompassed both 9 — Op . cit., No 189. 10 — Case 21/76 [1976] ECR 1735. 11 — Case C-220/88 [1990] ECR I-49. 12 — That question is also central to the case of Mannari (C-364/93), in which my Opinion is shortly to be delivered. 13 — Paragraph 11.

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'... the place where the damage occurred and ment in Tessili , involving the notion of the the place of the event giving rise to it'. place of performance of an obligation; it again adopted that position in its recent deci­ 1 sion in Custom Made Commercial, 8in which it held, in the context of Article 5(1), that

19. The Court took the opportunity in the 15 Dumez judgment to point out that the jurisdictional rule contained in Article 5(3) supports the need for a close connecting fac­ tor between the dispute and the court hear­ '... the place of performance of the obligation ing the case, that is to say, the need for the to pay the price is to be determined pursuant sound administration of justice. to the substantive law governing the obliga­ tion in dispute under the conflicts rules of 1 the court seised ...'. 9

20. Consequently, the Court considered that

25. The latter solution would appear to reflect the purpose of the Convention, which is to allocate disputes consistently, and thus in accordance with an independent criterion, amongst the courts of the Contracting States, '... [avoid] any upheaval in the solutions and which forms part of the logic underlying worked out in the various national systems the Court's judgments in Mines de Potasse of law, since it looks to unification, in con­ d'Alsace and Dumez. formity 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 con­ 20 cerned.'

34. In French law, solutions to the problem of cross-border torts committed in the press have emerged in the context of invasion of 24 privacy. The second indent in Article 46 of 32. That is also Mr Kropholler's view: the New Code of Civil Procedure allows the plaintiff to sue either in the courts of the defendant's domicile or in those of the place of the causal event or, lastly, in those in whose judicial district the damage has been suffered. The choice between those two lat­ ter forums has been understood as relating, first, to the courts for the place in which 'So besteht bei der durch ein Druckerzeugnis publication occurred and, second, to those verübten unerlaubten Handlung eine inter­ for the places where distribution was nationale Zuständigkeit nicht nur am Ort der effected. Whilst the former are competent to Herstellung, sondern auch an den unter hear and determine claims in respect of the Umständen sehr zahlreichen Orten, an denen 25 whole of the damage, wherever it may have es bestimmungsgemäß verbreitet wird'. occurred, the latter can only order compen­ sation in respect of the harm suffered within 27 their judicial district. As will be seen, cer­ 22 — Internationale Urtetlsanerkenniing, Band I, 1. Halbband, C. tain academic writers have criticized the H. Bcck'schc Verlagsbuchhandlung, München, 1983, p. 631. decisions given to that effect. 23 — Free translation: 'The competing jurisdiction of the courts of the place where the event occurred and of those of the place where the damage arose is such that it is possible to sue in respect of the whole of the damage, irrespective of where it may have occurred, and not merely in respect of the damage occurring in the national territory of the court'. 26 — J. Erauw: De onrechtmatige daad in het internationaal 24 — Enropaiiches Zivilprozeßrecht, Verlag Recht und Wirtschaft privaatrecht, Antwerpen, Maarten Kluwer, 1982, p. 194 to GmbH , Heidelberg, 1991, p. 103, paragraph 45. 197. 25 — Free translation: 'In the casc of unlawful acts effected by 27 — Judgments of the Paris Regional Court of 29 September publication in print, international competence in respect of 1982 (Romy Schneider), 27 April 1983 (Caroline of Monaco) the whole of the damage exists not only in the place of pub­ and 20 February 1992 (Vincent Lindon); judgment of the lication but also in each of the (frequently numerous) places Paris Court of Appeal of 19 March 1984 (Caroline of where distribution has taken place . Monaco).

29 30 36. The laws of Spain and Italy confer jurisdiction to award compensation for the 39. Lastly, in the Netherlands, jurisdiction is whole of the damage solely on the courts for conferred only on the courts for the place the place where the publication was printed where the defendant is domiciled or, failing and initially distributed, irrespective of that, where he resides. If he is neither domi­ where the damage occurred. Thus a central ciled nor resident in the Netherlands, the forum is designated in such matters. forum actoris is adopted.

28 — F. Schockweiler: Les conflits de lois et les conflits de juridic- 31 — Barrett v Independent Newspapers [1986] ILRM 601. tions en droit international privé luxembourgeois, Ministry 32 — Judgments of the Supremo Tribunal de Justiça of 18 April of Justice, Luxembourg, 1987, No 858. 1990, in Actualidade Jurídica, No 8, p. 2, and of the Tribu­ 29 — See the orders of the Tribunal Supremo of 20 November nal da Relação de Coimbra of 8 January 1963, in Castelo 1980 (Repertorio Aranzadi de Jurisprudencia (RAJ), 1980, Branco Galvão, Direito e Processo Penal, Coimbra, 1982, No4524), 7 July 1983 (RAJ, 1983, No4112) and 28 Sep­ p.32. tember 1992 (RAJ, 1992, No 7385). 33 — Judgments of the Tribunal da Relação de Lisboa of 11 Feb­ 30 — See the judgment of the Corte di Cassazione of 28 July ruary 1955 and 17 February 1965, in Castelo Branco Gal- 1990, in Cassazione penale, 1992, p. 644. vão, op. cit., p. 32.

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40. The diversity of the solutions adopted quently, for the purposes of the choice of by the internal legal systems of the Contract­ jurisdiction, the place in which the victim is ing States reflects the difficulty in ascertain­ domiciled is to be regarded as that in which 35 ing the place where the damage arose in the the damage arose. event that such damage is non-material. Mrs Gaudemet-Tallon is accordingly quite cor­ rect in her observation that

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must also be by such distribution that the 46. Furthermore, that forum does not damage is created and assumes concrete appear particularly to meet the requirements form'. of the sound administration of justice, to which the Court has drawn attention in sev­ 40 eral of its judgments, even though it in fact allows the procedure to be centralized, as, after all, does the forum of the defendant's domicile. The example given by the United Kingdom is particularly apposite, concerning 44. In the result, Mr Bourel states that he an Italian actor domiciled in England, where too is in favour of the attribution of jurisdic­ 41 he is totally unknown. An Italian news­ tion to the courts of the victim's domicile, '... paper not circulated in England damages his in the sense of ... the place where the tort, reputation. Even if the courts of the plain­ taken as a whole, came into being'; in his tiff's domicile were accepted as having juris­ view, neither publication nor distribution is diction, he could bring proceedings before of any relevance as regards jurisdiction, since the English courts without there being any they are 'neutral, unclassifiable and thus of 38 justification for such forum from the stand­ no practical application'. point of the sound administration of justice.

45. However, to sanction that forum would be tantamount to conferring jurisdiction on the forum actoris, an attribution to which, as the Court has pointed out on numerous 47. Finally, it will be noted that none of the occasions, the Convention is hostile. Thus it legal systems of any of the Contracting observed in its judgment in Dumez that States has sanctioned the attribution of juris­ diction to that forum.

52. In the present case, the situation is more '... the judgment in Mines de Potasse d'Alsace complex, involving as it does a causal event related to a situation in which the damage — giving rise to more than one instance of dam­ to crops in the Netherlands — occurred at age. The harm occurs in the place of the final some distance from the event giving rise to element malung up the tort, that is to say, in the damage — the discharge of saline waste the case of torts committed in a newspaper into the Rhine by an undertaking established or in radio or television programmes, in each in France — but by the direct effect of the State where the newspaper is distributed or causal agent, namely the saline waste which the broadcast programme is received. In had moved physically from one place to objective terms, the place in which the causal 42 another'. event directly giving rise to such damage occurs is that in which the newspaper is pub­ lished or the programme is broadcast.

mentators have proposed the adoption of 57. It is certainly true that such an approach specific criteria. avoids the multiplication of competent forums, which is one of the purposes of the Convention. However, quite apart from the fact that the principle of proximity cannot justify preference being given either to the courts for the place where the causal event 44 occurred or to those for the place where the 55. Thus, according to Lasok and Stone, damage arose, it is my view, as I stated in my Opinion in Dumez, that the exclusion of one of those connecting factors in certain cases and of the other factor in other cases could undermine the consistency of the Court's 48 case-law. '... it is thought that the Bier decision does not preclude the eventual adoption of spe­ cific rules for particular torts; e. g. a rule that for the purposes of defamation by a single publication, the relevant place is that of the 45 publication to the third person'.

58. Thus, the plaintiff could bring the pro­ 46 ceedings, at his option, either before the 56. Kaye, for his part, states that courts of the defendant's domicile, the courts of the place of the causal event or the courts of the place or places in which the damage arose.

'... it is considered that in the context of Article 5(3), when a defamatory statement is uttered, written, broadcast or posted in State A, published in State B and causes damage to reputation in State C (to which news of the publication spread by natural processes), it is the defendant's act in State A which should be held to be the event giving rise to the damage and consequently the harmful event 59. The question immediately arises as to the 47 for the purposes of Article 5(3) ...'. scope of the jurisdiction of those courts, par­ ticularly those in whose judicial district an allegedly defamatory text has been distri­ buted. 44 — Conflict of Laws in the European Community, op. cit. 45 — P. 232. 46 — Civil Jurisdiction and Enforcement of Foreign Judgments, op. cit. 47 — P. 580. 48 — Paragraph 11.

51 — P. 704. 52 — Recueil Dalloz Sirey, 1977, p. 614 to 615. 62. By contrast, Mr Lagarde, in an article 53 — La convention de Bruxelles du 27 septembre 50 1968 — Compétence judiciaire et effets des jugements dans much commented upon, has expressed the la CEE, Jupiter, 1985, paragraph 88, p. 49. view that 54 — Journal du droit international, 1977, p. 728. 55 — P. 733. In a more recent article, Mr Huet considers that, with a view to the concentration of actions, the decision in Shenavai could be extended to tortious matters, so that the courts of the place where the damage mainly arose would be competent to order compensation for the whole of the 49 — Sec paragraphs 30 to 32, above. damage suffered in the various Contracting States {Journal 50 — Revue critique de droit international privé, 1974, p. 700. du droit international, 1994, p. 169 to 170).

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64. That analysis is shared by most French tim, confronted with such a system, would courts, which do not regard themselves as be bound to choose the forum, in which he competent to order compensation for any felt that he would be best compensated for damage suffered in other Contracting States the damage suffered by him. where the unlawful act has been committed 56 in one of those other States.

68. First, it is clear from the Court's case- law that 65. Whilst the solution advocated by the German authors has the undeniable merit of avoiding a multiplicity of competent forums, it appears primarily to be prompted by a desire to protect the victim, who would thus not be obliged, in order to obtain compensa­ '... the "special jurisdictions" enumerated in tion for the whole of the damage suffered, to Articles 5 and 6 of the Convention constitute sue in each of the courts of the Contracting derogations from the principle that jurisdic­ States in whose judicial district damage had tion is vested in the courts of the State where arisen. the defendant is domiciled and as such must 58 be interpreted restrictively.'

court territorially best qualified to determine 72. It cannot be denied that the main prob­ a dispute'. lem with such limitation of jurisdiction lies in the proliferation of competent forums and, consequently, in the danger of conflict­ ing — but not irreconcilable ·— decisions 62 delivered by the courts seised. On the other hand, it is in conformity with many of the objectives of the Convention, as noted 70. Above all, however, it does not appear to by the Court. me to form any part of the principles estab­ lished by the line of decisions commencing with the judgment in Mines de Potasse d'Alsace. The courts of the place of the causal event have jurisdiction in respect of 73. First, the courts of the place where the the whole of the damage arising from the damage arises are best placed to assess the unlawful act. They therefore constitute, harm done to the victim's reputation within along with the courts of the defendant's their judicial district, and to determine the domicile, a firm basis of reference in respect extent of the damage. of the whole of the damage. By contrast, in a situation such as that in the present case, the jurisdiction of the courts of the places where the damage arises is founded solely on the notion 74. Second, the adoption of such a criterion avoids the occurrence of concurrent litiga­ 63 tion in different forums. Its effect is that the competence of each of them is restricted to the damage arising within their respective judicial districts. '... 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 61 efficacious conduct of the proceedings'. 75. Third, the aim of providing legal protec­ tion can only be satisfied if the rules govern­ ing jurisdiction are foreseeable, a require­ ment to which the Court referred in its judgments in Handte 64 and Custom Made 65 Commercial. The defendant will be in a 71. Consequently, the courts of one of the position to know precisely, on the basis of places where damage arose cannot hear pro­ the place in which the newspapers are dis­ ceedings for compensation for damage aris­ tributed, before which court or courts it ing in other Contracting States, inasmuch as there is no element of proximity connecting the forum with the dispute. 62 — I will revert in paragraphs 97 et seq., below, to the question of the absence of irreconcilability between decisions, within the meaning of Article 27(3) of the Convention. 63 — Sec paragraph 6 of the judgment in Case 38/81, cited above. 60 — Paragraph 6. 64 — Case C-26/91 [1992] ECR I-3967. 61 — Case 21/76, cited above, paragraph 11. 65 — Case C-288/92, cited above.

76. Lastly, in this area more than in any other, the restrictive interpretation of the rules of special jurisdiction calls for the solu­ tion which I am proposing. It should in that 79. My view in this case does not in any way regard be borne in mind, as the Court held conflict with that to which I have just in Kalfelis, referred. In circumstances such as those in Kalfelis, the existence of a single court for the contract would allow an objective cen­ tralization, without any risk of 'forum shop­ ping'. In the present case, on the other hand, that risk would be considerable if, in order to avoid the problem of multiple forums, one such forum could be chosen by the plaintiff with a view to obtaining •— for reasons of '... that a court which has jurisdiction under procedural and substantive legal strategy ·— Article 5(3) over an action in so far as it is compensation for the harm allegedly suffered based on tort or delict does not have juris­ in the territory of several Contracting States. diction over that action in so far as it is not 66 As I have stated above, it is already possible so based.' for proceedings to be centralized in the courts of the defendant's domicile or in those of the causal event. Such centralization should not be additionally obtainable by vir­ tue of any special — and, let me repeat, restrictive — jurisdiction.

77. It has previously been suggested by me that a claim founded simultaneously in tort, contract and unjust enrichment should be governed exclusively by the rules laid down for contractual matters by Article 5(1), hav­ 80. Thus, to repeat the expression used by ing regard to the need to rationalize jurisdic­ Mr Huet, there is certainly a 'fragmentation tion and to centralize the proceedings before 69 67 of international jurisdiction'. He has there­ a single forum. 70 fore suggested in a recent article that the

"... the court before which the matter is brought will, when determining whether it has jurisdiction, be guided by the maxim 84. Attractive though that approach may be, accessorium sequitur principale; in other and although the court must ascertain words, where various obligations are at issue, whether it has jurisdiction ratione matéri- it will be the principal obligation which will 74 72 áé, I do not think that the intention of the determine its jurisdiction'. Convention was to bind the court's jurisdic­ tion to an assessment of the substance of the dispute; it is based upon an objective, imper­ sonal view of the link of proximity, which cannot vary according to the specific nature 82. According to Mr Huet, of a given case. It may be very difficult, if not impossible, to determine the 'main damage' in the case of international celebrities, par­ ticularly when they have no connection, in terms of nationality or residence, with the Community. 'If transposed to matters of tort or delict, and particularly to invasions of privacy resulting from media exposure in several countries, the principle accessorium sequitur principale would enable the victim of multi­ ple damage (occurring in the various places 85. On the other hand, however, it is in the where distribution took place) to bring a sin­ majority of cases a necessary, if sometimes gle action before the courts of the place delicate, task to determine objectively the where the main harm suffered by him arose place where the principal contractual obliga­ (such "main" damage not having necessarily tion is to be performed.

87. Moreover, we appear here to be 'on the fringes' of civil matters, so that it seems pref­ erable to adhere, within certain limits, to the concept of territoriality.

89. In asking the second, fourth and fifth questions, the national court seeks guidance as to the existence of damage where the law applicable to the tort or delict (English law in the present case) does not require the per­ 88. Furthermore, it was that concept which son claiming to be the victim of defamation prompted those drafting the Community to prove, first, that he or she was known to certain readers and, second, that he or she suffered actual harm, such harm being, as we 75 — P. 1755. have seen, presumed.

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92. Neither the Commission nor the inter­ veners have sought to maintain that, for the purposes of the uniform application of the Convention, there was any need to unify the substantive law relating to tortious liability. 96. The same applies in relation to the appli­ cable procedural rules. I would merely draw attention in that regard to the Court's judg­ 7 ment in Kongress Agentur Hagen, 8 in which it stated:

93. That is my view also, since the objective of the Convention is to allocate jurisdiction consistently amongst the courts of the Con­ tracting States and not to unify the rules '... the object of the Convention is not to concerning the substantive law. unify procedural rules but to determine

76 — See also in this regard footnote 1 to the Opinion of Advo­ 77 — Op . cit., p. 564. cate General Jacobs in Mamite. 78 — Case C-365/8S [1990] ECR I-1845.

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which court has jurisdiction in disputes 99. Article 22, relating to cases where juris­ relating to civil and commercial matters in diction is declined on the grounds of con- intra-Community relations and to facilitate nexity, stipulates jurisdiction of that type as a the enforcement of judgments. It is therefore condition of its application, and is conse­ necessary to draw a clear distinction between quently inapplicable. Mrs Gaudemet-Tallon jurisdiction and the conditions governing the states in that regard, moreover: 79 admissibility of an action'.

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SHEVILL v PRESSE ALLIANCE SA

of Article 27(3), it should be examined 105. The influence of the substance of a dis­ whether they entail legal consequences that pute on the determination of jurisdiction has are mutually exclusive'. previously been analysed by the Court in the 83 case of Effer, which concerned Article 5(1) and in which the defendant contested the existence of contractual relations.

102. The Court found in that judgment that a decision ordering a husband to pay main­ tenance to his wife was irreconcilable with a decision given in another Contracting State 106. In his Opinion, Advocate General pronouncing the divorce. The present case Reischl considered that does not fall within that hypothesis, and even though the decisions given might be regarded as contradictory, they would not be irreconcilable.

'If it were to be accepted that the presence of a dispute over the existence of a contractual relationship ipso facto excludes an action 103. The recognition of its jurisdiction by under Article 5(1) of the Convention, then it the court of the place where the damage would be possible by a simple denial on the arises cannot be compromised on the ground part of the defendant to render that provi­ of a risk of conflict between the decision to sion largely ineffective, as well as that in be given by it and that of a court in another Article 5(3) — jurisdiction in matters relating Contracting State which has jurisdiction to to tort — where indeed the defendant's order compensation for the damage occur­ defence as a rule consists of denying the 84 ring within its judicial district. existence of a tort'.

109. What is involved here is the application of the hallowed rule that it is for each court and that to determine its own jurisdiction.

110. The outcome is necessarily the same where a court before which proceedings are '... respect for the aims and spirit of the Con­ brought pursuant to Article 5(3) has to give a vention demands that that provision should ruling on an objection of lack of competence be construed as meaning that the court called raised by a defendant denying the existence upon to decide a dispute arising out of a of the tort. In order to be able to rule on that contract may examine, of its own motion objection, the court has to verify, on the even, the essential preconditions for its juris­ basis of the evidence adduced by the plain­ diction, having regard to conclusive and rel­ tiff, whether the defendant did or did not evant evidence adduced by the party con­ commit an act which might render him liable cerned, establishing the existence or the and giving rise to damage within the judicial 85 inexistence of the contract'. district of the court.

111. I am accordingly of the opinion that the questions referred to the Court should be answered as follows:

'In the case of defamation by a newspaper article circulated in more than one Con­ tracting State, Article 5(3) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that the plaintiff may sue either in the courts of the place of publication, which have jurisdiction to order compensation for the whole of the damage arising from the unlawful act, or in the courts of the places where the newspaper is distributed, which have jurisdiction solely in respect of the dam­ age arising, according to the law applicable to the tort or delict, within their judi­ cial district.