C-51/97

RÉUNION EUROPÉENE v SPLIETHOFF'S BEVRACHTINGSKANTOOR AND ANOTHER

OPINION OF ADVOCATE GENERAL COSMAS delivered on 5 February 1998

3 I — Preliminary observations chased, in May 1988, a large quantity of pears from the Australian company F. W. Year, with its registered office in Melbourne.

1. By four preliminary questions the French Cour de Cassation (Court of Cassation) 3. It was under cover of a bearer bill of lading requests an interpretation from the Court of issued, on 8 May 1992, in Sydney by the Article 5, paragraphs 1 and 3, and Article 6 of Australian company Refrigerated Container the Brussels Convention of 27 September Carriers PTY Ltd, with its registered office in 1968 on jurisdiction and the enforcement of Sydney (hereinafter 'RCC' ) that the goods 1 judgments in civil and commercial matters, were loaded, in eight refrigerated containers as amended most recently by the Convention containing 5 199 boxes of pears, in the port of of 26 May 1989 on the Accession of the Melbourne on board the vessel AlbUsgracht Kingdom of Spain and the Portuguese Repub­ V002, bound for the port of Rotterdam, which 2 lic. was designated as the place of delivery and unloading of the goods. This vessel was, it seems, operated by the Dutch company Spli- ethoff's, which is not referred to in the bill of lading and which has its registered office in Amsterdam. Brambi was merely to be noti­ II — The facts fied of the bill of lading.

4. From Rotterdam, the containers were trans­ 2. The facts of the present case do not emerge ported by road, under cover of international with all desirable clarity from the order for consignment notes, to Rungis in France, where reference, from the observations of the par­ the registered office of Brambi is situated. The ties or from the case-file in the main proceed­ consignment notes for this part of the journey ings. According to the case-file, the French indicate that they were issued by the com­ company Brambi Fruits, with its registered pany Transeco and refer to 'Conship' as the office in Rungis (hereinafter 'Brambi'), pur­ carrier.

5. When the consignment arrived at Rungis, merce held that RCC had not respected its Brambi noticed that it was damaged and 'contract' and ordered it to pay compensation entered reservations against delivery. The of some FRF 400 000 to the insurers, as well 5 damage resulted from a premature ripening of as the costs of the proceedings. the fruit, due to a breakdown in the cooling 4 system. Compensation for the damage was paid by the company Réunion Européenne and nine other insurance companies, all of whom were plaintiffs and are now appellants In contrast, the Tribunal de Commerce in the final appeal in the main proceedings. declared that it lacked jurisdiction in so far as the other two defendants were concerned, on the following grounds: there was nothing to show that there was combined joint transport from Melbourne to Rungis; the place where the defendants were to perform their obliga­ 6. After having paid out the compensation tion was Rotterdam; and, as a result, by virtue due, the insurers, subrogated to the rights of of the Convention, the competent courts were Brambi, brought an action before the Tribunal those of Rotterdam, where the goods were to de Commerce (Commercial Court), Créteil, be delivered, or those of Amsterdam, place of in the jurisdiction of which Rungis is situ­ domicile of the defendants. ated. Their action was brought, on the one hand, against RCC , who had issued the bill of lading for the maritime part of the trans­ port operation, and, on the other, against (a) Spliethoff's and (b) the master of the vessel Alblasgracht, in their capacity as the actual 8. On appeal by the insurers, the Cour maritime transporters. d'Appel (Court of Appeal), Paris, upheld the decision at first instance in holding that the liability of Spliethoff's and of the master of the vessel was necessarily based on contract and that, as a result, the abovementioned Netherlands courts had jurisdiction by virtue of Article 2 and Article 5(1) of the Brussels 7. The Tribunal de Commerce held, having Convention. regard to the correspondence between Brambi and RCC , that the pears were intended to be delivered in Rungis and that, as a result, it had jurisdiction over the 'transaction' between these two companies. Thus, presumably under the first paragraph of Article 4 of the Con­ 9. The insurers brought a final appeal against vention, it applied French law and not the this decision before the Cour de Cassation. provisions of the said Convention, since the They submitted that the dispute with the Commonwealth of Australia is not a party to defendants was not contractual in character, the latter. In addition, the Tribunal de Com­ as the Cour d'Appel had wrongly held, but

III — The questions for preliminary ruling

3. In the event that the matter is to be regarded as one relating to tort, delict or quasi- delict, may the place where the consignee, after completion of the maritime transport The French Cour de Cassation requests the operation and then the final overland trans­ Court of Justice to rule on the following port operation, merely discovered that the questions: goods delivered to him were damaged, constitute — and if so under what condi­ tions — the place of occurrence of the damage which, according to the judgment of the Court of Justice of 30 November 1976 in Case 21/76 Bier v Mines de Potasse '1 . Is an action by which the consignee of d'Alsace [1976] ECR 1735, may be the goods found to be damaged on comple­ place "where the harmful event occurred" tion of a transport operation by sea and within the meaning of Article 5(3) of the then by land, or by which his insurer who Convention?

I - 6515

OPINION OF MR COSMAS — CASE C-51/97

4. May a defendant domiciled in the territory 13. Article 4 provides: of a Contracting State be brought, in another Contracting State, before the court hearing an action against a co-defendant not domiciled in the territory of any Con­ tracting State, on the ground that the dis­ pute is indivisible, rather than merely dis­ playing a connection?' 'If the defendant is not domiciled in a Con­ tracting State, the jurisdiction of the Courts of each Contracting State shall, subject to the provisions of Article 16, be determined by the law of that State.' IV — The legal framework

14. Article 5 of the Convention provides: 11. Article 2 of the Convention provides:

'A person domiciled in a Contracting State may also be sued:

V — The substance

(1) where he is one of a number of defen­ dants, in the courts for the place where any The first question one of them is domiciled ...'.

17. The defendants submit that, to the extent that the action they are subject to has as its 16. Finally, Article 22 of the Convention pro­ basis the bill of lading, i. e. the formal docu­ vides: ment of the contract of carriage, the dispute concerns matters relating to contract. In con­ trast, the German and French Governments, as well as the Commission, submit that, in the absence of a contractual link between the purchaser and the maritime carrier, the dis­ pute is not contractual in nature. 'Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.

18. The defendants' position cannot be accepted.

A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that country 19. It should first be recalled that the Con­ permits the consolidation of related actions vention seeks to unify the rules of interna­ and the court first seised has jurisdiction over tional jurisdiction of the Contracting States. both actions. Its objective is, in particular, to avoid, in so

This freedom of choice was introduced having 20. Under the system of the Convention, the regard to the existence, in certain clearly general principle is that the courts of the defined situations, of a particularly close con­ Contracting State in which the defendant is necting factor between a dispute and the court domiciled are to have jurisdiction (Article 2); which may be called upon to hear it, with a it is only by way of derogation from this view to the efficacious conduct of the pro­ 9 principle that the Convention provides for ceedings. cases, which are exhaustively listed, in which the defendant may (in the case of special jurisdiction) or must (in the case of exclusive jurisdiction or prorogation of jurisdiction), depending on the case, be sued in the courts of another Contracting State. 7 22. One of these situations arises in disputes in matters relating to contract. The concept of 'matters relating to a contract' is not defined in the Convention. However, as the Court has repeatedly emphasised, in order to ensure the full effectiveness of the Convention, this concept has to be interpreted independently, by reference to the system and objectives of the Convention, and it cannot be understood In fact, in general, the defendant is regarded, as referring simply to the classification that from a procedural point of view, to be the national law gives to the legal relationship at weaker party as a result of the fact that it is issue before the national court. 0 1

he who is being sued by the plaintiff, except

8 — Farrell (paragraph 19), cited in footnote 6. 6 — Case C-269/95 Benincasa [1997] ECR I-3767, paragraphs 25 9 — Case 21/76 Mines de Potasse d'Alsace [1976] ECR 1735, para- and 26, and Case C-295/95 Farrell [1997] ECR I-1683, para- graph 11, and Case C-288/92 Custom Made Commercial graph 13. [1994] ECR 1-2913, paragraph 12. 7 — See Case C-26/91 Handle [1992] ECR I-3967, paragraph 13, 10 — Case 34/82 Peters [1983] ECR 987, paragraphs 9 and 10, as well as the decisions in Benincasa (paragraph 13) and Far- Case 9/87 Arcado [1988] ECR 1539, paragraphs 10 and 11, rell (paragraph 18), cited in footnote 6. and Handte, paragraph 10, cited in footnote 7.

23. The concept of matters relating to a con­ In those circumstances, the Court held that, tract was defined in particular in the Handte in the absence of a contractual relationship case. In that case, a French company having between a manufacturer and a sub-buyer, its registered office in Bonneville had pur­ where the identity and domicile of the latter chased products from the subsidiary of a may reasonably be unknown to the former, German company, which had its registered the manufacturer cannot foresee before which office in Strasbourg. As the products appeared courts, other than those of his domicile, he to be defective, it brought an action before may be sued, which would be incompatible the Tribunal de Grande Instance (Regional with the principle of legal certainty which the Court), Bonneville, for compensation against Convention seeks to protect (paragraphs 18 both the seller and the German company and 20). which had manufactured the product. When asked to rule on the question of whether the relationship between the sub-buyer and the manufacturer was contractual in character (the only situation in which the manufacturing company could have been sued before the courts of the 'place of performance of the obligation'), the Court held, having recalled 24. It follows from this case-law that, within the objectives of the Convention, that the the meaning of Article 5(1) of the Conven­ concept of 'matters relating to a contract' tion, which is to be strictly interpreted in so 12 within the meaning of Article 5(1) could not far as it derogates from Article 2, an action to be understood as covering a situation in for compensation does not constitute a 'mat­ which there is no obligation freely assumed ter relating to a contract' except where there by one party towards another (paragraph 15), is an agreement freely entered into, not as as in the case of the relationship between the between the plaintiff and a third party or sub-buyer of goods purchased from an inter­ between the defendant and a third party, but mediate seller and the manufacturer of those between the plaintiff and the defendant and goods (paragraph 16). on the condition that the plaintiff submits in his application that the defendant is in breach of the obligations imposed on him as a result of that agreement.

27. It follows in any event from the findings 29. As regards the relationship between of the court of first instance and from those Brambi and Spliethoff's, we do not have any of the court of second instance that the delivery clear evidence. The allegations of the parties of the pears to Rungis was agreed between in the course of the main proceedings and RCC and Brambi, probably in the context of their written observations before the Court a contract of transport between the two com­ do not in fact allow us to say whether there panies concerning the carriage of the goods 13 was a contractual link between the two com­ from Melbourne to Rungis. The transport panies. On the contrary, the plaintiffs sub­ was in any event completed in two stages mitted, without being contradicted on this clearly separate and independent from each point by any convincing argument on the part other, the first by sea and the second by land. of the defendants, that RCC sub-contracted the performance of the maritime transport to 14 Spliethoff's. This implies, logically, that a contract must have been concluded between 15 RCC and Spliethoff's. Whether or not such a contract existed, however, is irrelevant in the present case since, in any event, Brambi is a third party in relation to this contract. In 28. For the maritime stage, which is the only fact, as indicated above (see point 20), in order one of interest to us here, RCC issued a bill for there to be a 'matter relating to a contract' of lading to the bearer, on which the con­ within the meaning of Article 5(1) of the signer is stated to be the Year company (i. e. Convention, it is not sufficient that there is the seller), while Brambi is mentioned as any kind of contract, even relating to the case, being the person to which the bill of lading between the plaintiff or the defendant and a should be notified and the transport is shown as having to be carried out on the vessel AlbUsgracht. The courts of first and second 14 — The defendants even relied on a bill of lading allegedly issued instance decided that, although the form car­ by Spliethoff's in the context of the transport of the goods ried the pre-printed reference that it was (see, for example, their submissions in the final appeal pro- ceedings), but they have not produced any evidence in sup- combined transport (i. e. covering several port of this. types of transport), the bill of lading related 15 — It is perhaps because of this that the Cour d'Appel decided that it was dealing with a 'matter relating to a contract', with Rotterdam as the place of performance of the obligation. In relation to the wide range of forms which the relationship between a carrier and a sub-contractor may take, see P. Dele- beque: 'Sous-traitance et transport', Le droit maritime 13 — See point 7 above. français, 1995 (47, p. 245).

31. As a result, to the extent that the national courts, who have sole jurisdiction to decide on the facts, concluded that there was no contractual link between Brambi and the 34. As I have stated previously, by way of defendants, or more precisely between the derogation from the general principle of inter­ former and Spliethoff's, the dispute cannot in national jurisdiction of the place of domicile any sense be considered as having a contrac­ of the defendant, Article 5(3) of the Conven­ tion provides that the latter may be sued:

I - 6521

OPINION OF MR COSMAS — CASE C-51/97

'in matters relating to tort, delict or quasi- The third question delict, in the courts for the place where the harmful event occurred.'

37. It should be noted that, by its third ques­ tion, the referring court seeks to ascertain whether, in the circumstances of the main proceedings, the place where the damage was simply discovered is the 'place where the 35. According to the case-law of the Court, harmful event occurred', within the meaning the concept of 'matters relating to tort, delict of Article 5(3) of the Convention, as inter­ or quasi-delict' in Article 5(3), must, in a preted by the Court. similar manner to the concept of 'matters relating to a contract' in Article 5(1), be regarded as an autonomous concept. In order to ensure uniformity in all the Member States, it must be recognised that the concept covers 'all actions which seek to establish the liability of a defendant and which are not related to a 38. This questions raises two problems. The "contract" within the meaning of Article first is to determine the place where the 5(1)'. 18 harmful event occurred when the damage took place in the course of international trans­ port, such as that in the main proceedings. The second problem is to determine whether this place corresponds with the place where the damage was simply discovered.

40. These points of view call for consider­ which is at the origin of the damage is situ­ ation. ated in a State other than the one in which the place where the damage occurred is situ­ ated' (paragraph 13) and it asked whether, in such a case, it was necessary to choose as the connecting factor the place of the event giving rise to the damage, or the place where the 41. As the Court has consistently held, this damage occurred, or to accept that the plain­ rule of special jurisdiction contained in Article tiff had an option between the one and the 5(3), which depends on the exercise of a other of those two connecting factors (para­ choice by the plaintiff, is based on the exist­ graph 14). ence of a particularly close connecting factor between the dispute and courts other than those of the domicile of the defendant, with a view to the sound administration of justice and the efficacious conduct of the proceed­ 19 ings. According to that judgment, the place of the event giving rise to the damage, no less than the place where the damage occurred, could, depending on the case, constitute a significant connecting factor from the point of view of 42. The meaning of the expression 'place jurisdiction. In fact, both could constitute where the harmful event occurred' used in significant factors connecting the dispute with Article 5(3) as a criterion of special interna­ the court seised, given that each of them could tional jurisdiction is not particularly clear. 20 be particularly helpful from the point of view The Jenard Report has already stated: 'The of the evidence and of the conduct of the Committee did not think it should specify proceedings (paragraphs 15 to 17). 22 whether that place is the place where the event which resulted in damage or injury occurred, or whether it is the place where the damage or injury was sustained. The Committee pre­ ferred to keep to a formula which has already been adopted by a number of legal systems'.

result that the defendant could be sued, at the diction in the case of defamation by the press, option of the plaintiff, in the courts of either where the newspaper was published in one of them (paragraphs 24 and 25). State, but the damage particularly resulted from its circulation in the State of domicile of the person defamed. The Court held that both the courts where the damage occurred and the courts where the harmful event originated, that is to say, the courts of the place of pub­ The Court also held that to opt only for the lication of the newspaper, had jurisdiction and place of the event giving rise to the damage that this was for all the harm caused by the would, in an appreciable number of cases, unlawful act (paragraphs 24 and 25). This cause confusion between the heads of juris­ place where the damage occurred is 'the place diction laid down by Articles 2 and 5(3) of where the event giving rise to the damage, the Convention, so that the latter provision entailing tortious, delictual or quasi-delictual would, to that extent, lose its effectiveness liability, produced its harmful effects upon 24 (paragraph 20). the victim' (paragraph 28). On the basis of these considerations, the Court concluded that the courts of each of the Member States in which the defamatory publication is circu­ lated are only competent to rule on the ques­ tion of compensation for injury caused to the 44. In Mines de Potasse d'Alsace, the place of reputation of the victim from the circulation the harmful event (that of the discharge of of the newspaper in the corresponding State waste by the French company into the Rhine, (paragraphs 29 to 33). leading to the pollution of its waters) was clearly different from the place where the damage was suffered (the place where the Dutch horticultural business irrigated its plan­ tations with the polluted waters, causing con­ siderable damage to them). However, this dis­ tinction is not always easy to make, all the more so where the exact determination of the place where the damage occurred presents certain difficulties in other respects. The Court has, in its case-law, ruled on a large number of similar questions in like circumstances. 46. In Dumez France and Tracoba (C-220/88), French companies had brought an action before their national courts against German banks for compensation in respect of the damage they suffered following the insol­ 25 45. In Shevill and Others, the Court had to vency of their subsidiaries established in Ger­ answer the question of which court has juris­ many. According to the plaintiffs, the damage was brought about by the suspension of a property-development project in Germany for a German prime contractor: the damage 23 — Marinari (paragraph 11) and Shevill and Others (paragraph 20), cited above in footnote 19. was the direct result of the cancellation by 24 — See Marinari (paragraph 12) and Shevill and Others (para- the German banks of the loans granted to the graph 22), cited above in footnote 19. 25 — Cited above in footnote 19. prime contractor.

27 47. The decision in Marinari is of greater interest. In this case, Mr Marinari, domiciled in Italy, had lodged a bundle of promissory notes with an English bank. The employees of the bank, after opening the envelope, refused The Court thus held that the term 'place to return the promissory notes and advised where the harmful event occurred' cannot be the police of their existence, considering that construed so extensively as to encompass any they were of dubious origin, which led to place where the adverse consequences can be Mr Marinari's arrest and sequestration of the felt of an event which has already caused promissory notes. Having been released by damage actually arising elsewhere (paragraph the English authorities, Mr Marinari brought 14). an action against the bank in the Italian courts seeking, on the one hand, payment of the face value of the promissory notes, and on the other hand, compensation for damage suf­ fered as a result of his detention, for breach of several contracts and for damage to his reputation. More particularly, this concept cannot be con­ strued as including the place where the victim 26 — [1990] ECR I-49. claims to have suffered financial damage 27 — Cited above in footnote 19. following upon initial damage arising and

I - 6525

OPINION OF MR COSMAS — CASE C-51/97

suffered by him in another Contracting State deliver them intact at another point. As a (paragraph 15). result, carriers are, in principle, liable for any damage caused to the goods between the departure and the arrival points of the voyage, that is to say for the entire duration of that voyage.

49. The above case-law provides sufficient 52. Let us suppose, however, that the carrier, elements to determine the 'place where the without the consignee's knowledge, had damage occurred' in the case where the damage entrusted part of the transport to another car­ occurs in the course of international carriage rier (the sub-contractor), even domiciled in of goods, as in the present case. the Community, who caused the damage to the goods. In this case, the first carrier remains liable towards the consignee, by virtue of the contract which binds them. The sub­ contractor is liable, on the one hand, towards the original carrier by virtue of the contract between them and, on the other hand, by 29 50. First of all, it must be observed that the reason of his tortious liability towards the basic obligation imposed on every carrier is consignee, to whom he is not bound by any to load the goods at a given point and to contractual link.

28 — Tortious, delictual or quasi-delictual liability can arise only 29 — See point 32 et seq. above. On the thorny issue of the liability if there is evidence of a causal link between the damage and of successive carriers in cases of combined transport, see the event in which that damage originates (see Mines de M. Remond-Gouilloud: Droit Maritime, Pedone, Paris 1993, Potasse d'Alsace (paragraph 16), cited above in footnote 9). paragraph 601 et seq.

I - 6526

RÉUNION EUROPÉENE v SPLIETHOFF'S BEVRACHTINGSKANTOOR AND ANOTHER

55. First, the place where the damage occurred cannot be that of the 'final delivery' of the goods, that is to say the place where the ini­ 56. In addition, the place where the damage tial carrier had to deliver the goods to the occurred cannot be that where the damage consignee, as the plaintiffs argue. was merely ascertained by the plaintiff.

30 — In my opinion, considering the difficulty in determining the place where the harmful event occurred, the place where the 31 — See Dumez France and Tromba (paragraphs 16 to 18) and damage occurred cannot be deemed to be that 'place', as Case C-89/91 Shearson Lehman H utton [1993] ECR I-139, suggested by the German Government paragraph 17.

I - 6527

OPINION OF MR COSMAS — CASE C-51/97

This deterioration constitutes in itself direct damage to the property, in the broad sense of the term, of the consignee or the assignee of 34 the goods. The fact that the deterioration of the goods was progressive (either because of its nature, or because of the negligence of the other carriers) is not relevant to what con­ cerns us here and does not alter the fact that the damage occurred during the course of the transport and, at the latest, at the end of that 35 transport. 57. In my opinion, in a case such as that in the main proceedings, the place where the damage occurred may only be that up to 34 — The German Government considers that one must address which the sub-contractor against whom the the question of who owns the goods during their transport. plaintiff takes legal action was in charge of Such a view would however restrict in an unjustified manner the circle of those entitled to invoke Article 5(3) of the Con- vention. Moreover, determination of this question would make it very difficult to verify whether the court seised of the matter has jurisdiction. As a result, this criterion does not seem to be suitable for the present case. 32 — Marinari (paragraph 19), cited above in footnote 19. 35 — See in this regard H. Gaudemet-Tallon: Les conventions de 33 — Marinari, paragraph 20. Bruxelles et de Lugano, LGDJ, Paris, 1993, paragraph 191.

I - 6528

RÉUNION EUROPÉENE v SPLIETHOFF'S BEVRACHTINGSKANTOOR AND ANOTHER

36 — Whether they are or not genuinely liable for the damage is not relevant here, that is to say in regard to the issue of determining the court having jurisdiction. This question relates to the substance of the case, which the court seised of the matter is not bound to decide in order to determine whether it has jurisdiction or not (see Custom Made Com- mercial (paragraph 20), cited above in footnote 9), and it will be examined by the court which will be designated as having jurisdiction according to the Convention rules. If the harmful event appears to have actually occurred during the maritime transport and if the carrier is liable for it, the court will uphold the action and hold the defendant liable. If the fac- tual circumstances on which the claim is based are not estab- lished or if the damage may not be attributed to the sub- contractor (because, for instance, the shipper had chosen inadequate containers) or if there are grounds for exempting the sub-contractor from all liability (for instance, where the damage is due to force majeure), the court will set aside the claim and will, if appropriate, hold the plaintiff liable to pay 60. In the present case, to the extent that, in the legal costs of the proceedings which were superfluous. To apply Article 5(3) of the Convention, one must refer to the main proceedings, the defendants are the facts on which the claim is based, that is the place where, according to the Convention, and according to the evidence alleged to be liable for the damage which put forward by the plaintiff, the harmful event occurred or where the damage occurred. As a prerequisite for the deter- occurred during the maritime transport from mination of this place, the court seised of the matter must, of course, assess the facts, in accordance with the national Melbourne to Rotterdam, it is in the latter court's procedural rules (see Shevill and Others (paragraphs port that the goods were, for the last time, 36 and 41), cited above in footnote 19). This assessment is absolutely necessary to enable the court seised to decide, of under the defendants' responsibility and suf­ its own motion if need be (see Shearson Lehman Hutton (paragraph 10), cited above in footnote 31), on its own juris- fered the harmful consequences of the diction.

'The answer... should therefore be that Article 22 of the Convention applies only where related actions are brought before courts of two or more Contracting States' (paragraph 20). 63. In these circumstances, it should first be recalled that, under Article 3 of the Conven­ tion, a person domiciled in a Contracting State may not be sued before the courts of another Contracting State except in the cases expressly and exhaustively provided for in 38 In the circumstances, irrespective of whether Sections 2 to 6 of Title II. the action brought against RCC and the action brought against the defendants are 'related actions' within the meaning of Article 22 of 37 — The referring court may be thinking of the 'indivisibilité' or the Convention, the fact is that separate actions 'connexité renforcée' under French law (see point 8 and footnote 12 of the Opinion of Advocate General Darmon in were not brought before the courts of dif­ Kalfelis, cited above in footnote 12). As will be seen below ferent Member States. As a result, and in any (point 68 of the present Opinion), the Court rejected that criterion as a criterion for determining international jurisdic- event, the conditions for the application of tion in Kalfelis. Article 22 are not satisfied. 38 — At least unless they have indicated their agreement. In the present case, there is neither a question of prorogation of jurisdiction within the meaning of Article 17 of the Conven- tion nor an implied prorogation of jurisdiction within the meaning of Article 18, since, in any event, the defendants have, in principle, appeared and put forward their defence. 39 — Case 150/80 [1981] ECR 1671.

66. It follows from the wording of this pro­ vision that an indispensable condition for its application is, in the first place, that the action 69. The Court emphasised that the exception is brought before the courts of the place of to the principle of Article 2 contained in 40 domicile of one of the defendants. This Article 6(1) must be treated in such a manner obviously means that the domicile of this that there is no possibility of the very exist­ defendant must be situated in a Contracting ence of that principle being called into ques­ State and that, as a result, this defendant must tion (paragraph 8). That possibility might be domiciled in a Contracting State. In addi­ arise if a plaintiff were at liberty to make a tion, as the case-law shows, it is necessary in claim against a number of defendants with the second place that there is a connecting the sole object of ousting the jurisdiction of factor, within the meaning of Article 22, the courts of the State where one of the between the actions which concern the defen­ defendants is domiciled; it is necessary for 41 dants. that purpose that there should be a connec­ tion between the claims made against each of the defendants (paragraph 9), the nature of which must be determined independently (paragraph 10). 67. As to the first condition, it should be recalled that RCC , to which the dispute with the defendants is allegedly linked, does not have a registered office in the jurisdiction of the Tribunal de Commerce of Créteil, before which it was sued, but rather in a non- Contracting State. As a result, and for this After having stated that Article 6(1), in the reason above all, the defendants cannot be same manner as Article 22, seeks to avoid the sued before the Tribunal de Commerce of risk in the Contracting States of judgments Créteil on the basis of Article 6(1) of the which are incompatible with each other (para­ Convention. graph 11), the Court held that 'The rule laid down in Article 6(1) therefore applies where the actions brought against the various defen­ 40 — See P. Gothot and D. Holleaux: La Convention de Bruxelles dants are related when the proceedings are du 27 septembre 1968, Paris, 1985, paragraph 114, and H. instituted, that is to say where it is expedient Gaudemet-Tallon, paragraph 223. 41 — See the judgment in Kalfelis, cited above in footnote 12. to hear and determine them together in order Academic writing says much the same (see Gaudemet-Tallon to avoid the risk of irreconcilable judgments and Others, paragraph 224, Gothot-Holleaux and Others, paragraph 111). resulting from separate proceedings. It is for

On this point, the Court first observed that the special jurisdictions enumerated in Articles 5 and 6 of the Convention constitute deroga­ tions from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled and as such must be interpreted restrictively. Consequently, the 72. This solution should also, for the same Court ruled that 'a court which has jurisdic­ reason, be adopted in the present proceed­ tion under Article 5(3) over an action in so ings. As regards the action for compensation, far as it is based on tort or delict does not if the court seised of the action based on tor­ have jurisdiction over that action in so far as 42 tious liability does not have jurisdiction to it is not so based' (paragraph 19). rule on the action which is founded on con­ tractual liability, the court seised of this latter action (a fortiori, if this is under provisions 42 — It should be recalled that the Court did not follow the view other than those in the Convention) cannot of Advocate General Darmon, who argued that the dispute in the contractual matter, as the main basis, 'channels' with rule on the former request either. Therefore, it the additional disputes which arose at the time of the con­ Article 6(1) cannot be applied in the present tract, so that jurisdiction could only be determined on the basis of Article 5(1) (see point 28 et seq. of the Opinion). case.

I - 6532

RÉUNION EUROPÉENE v SPLIETHOFF'S BEVRACHTINGSKANTOOR AND ANOTHER

VI — Conclusion

For those reasons, I propose that the questions submitted be answered as follows:

I - 6533