C-167/00

HENKEL

OPINION OF ADVOCATE GENERAL JACOBS delivered on 14 March 2002 1

1. In this reference for a preliminary ruling the court or tribunal. It shall not extend, in from the Oberster Gerichtshof (Supreme particular, to revenue, customs or adminis- Court), Austria, the Court is asked whether trative matters.' an action brought by a consumers' associ- ation under national consumer protection legislation to obtain an injunction pro- hibiting the use of unlawful or uncon- scionable general contractual terms and conditions is a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Brussels Convention on jurisdiction and the enforcement of judg- 3. Title II of the Convention allocates ments in civil and commercial matters. 2 international jurisdiction between the Con- tracting States and in some cases to local courts within the relevant Contracting State. The basic rule of the Convention is that the courts of the Contracting State in which the defendant is domiciled have jurisdiction (Article 2). However, by way of exception to that rule other courts may or must have jurisdiction to hear certain The Brussels Convention types of action.

2. The first paragraph of Article 1 of the Convention states:

4. Article 5(1) of the Convention confers jurisdiction 'in matters relating to a contract [on] the courts for the place of performance of the obligation in question'. 'This Convention shall apply in civil and Article 5(3) confers jurisdiction 'in matters commercial matters whatever the nature of relating to tort, delict or quasi-delict [on] the courts for the place where the harmful event occurred'. It is clear from the word- 1 — Original language: English. ing of Articles 2 and 5 that in both those 2 — Convention of 27 September 1968. A consolidated version of the Convention as amended by the four subsequent cases the jurisdiction supplements rather Accession Conventions is published in OJ 1998 C 27, p. 1. than replaces that conferred by Article 2.

7. Directive 93/13 on unfair terms in con- sumer contracts 5 seeks to approximate the laws of Member States relating to unfair terms in consumer contracts. 6 The pre- 2. The means referred to in paragraph 1 amble states that 'it is the responsibility of shall include provisions whereby persons or Member States to ensure that contracts organisations, having a legitimate interest concluded with consumers do not contain under national law in protecting con- unfair terms'. 7 Article 6 requires Member sumers, may take action according to the national law concerned before the courts or before competent administrative bodies for 3 — Council Regulation (EC) No 44/2001 of 22 December 2000, OJ 2001 L 12, p. 1. a decision as to whether contractual terms 4 — Article 1(3). drawn up for general use are unfair, so that J — Council Directive 93/13/EEC of 5 April 1993, OJ 1993 they can apply appropriate and effective L 95, p. 29. 6 — Article 1(1). means to prevent the continued use of such 7 — Fourth recital. terms.'

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The background to the question referred Consumer Protection Law and national data protection and competition law and is seeking an injunction under Paragraph 28 of the Consumer Protection Law.

9 — Case 189/87 Kalfehs [1988] ECR 5565, paragraph 17 of the 8 — BGBl. 1979/140. judgment.

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within the scope of 'matters relating to tort, as a basis the place where the harmful event delict or quasi-delict' within the meaning of occurred and thus, according to its word- Article 5(3) of the Convention and has ing, presupposes that damage has already accordingly sought a preliminary ruling occurred. on the question set out in paragraph 1 above.

17. Written observations have been sub- 14. In the order for reference the Oberster mitted by the Consumers' Association, Mr Gerichtshof makes the following two Henkel, the Austrian, French, German and points. United Kingdom Governments and the Commission. The Consumers' Association, the French and United Kingdom Govern- ments and the Commission were repre- sented at the hearing.

power. On the basis of the Court's case-law 21. The Court has held, as the United on Article 1 of the Convention, 10 the Kingdom notes, that 'certain types of United Kingdom concludes that an action judicial decision must be regarded as brought by the Consumers' Association excluded from the area of application of pursuant to Paragraphs 28 and 29 of the the Convention, either by reason of the Consumer Protection Law and in accord- legal relationships between the parties to ance with Article 7(2) of Directive 93/13 is the action or of the subject-matter of the not a civil or commercial matter falling action', and that, although 'certain judg- within the scope of Article 1 of the Con- ments given in actions between a public vention. authority and a person governed by private law may fall within the area of application of the Convention, this is not so where the public authority acts in the exercise of its powers'. 11 Although that principle was developed in the context of disputes as to recognition and enforcement of judgments 19. The German Government, in contrast, pursuant to Title III of the Convention, I considers that the Convention applies on agree with the United Kingdom that the the basis that the Consumers' Association's principle concerns the scope of Article 1 supervision of general conditions derives and is equally applicable to disputes as to from the protection conferred by civil law jurisdiction pursuant to Title II of the on consumers, while the Consumers' Convention. Association and the Commission submit that the Consumers' Association is a pri- vate law association under Austrian law, that Directive 93/13 permits Member States to grant a right of action under Article 7(2) to organisations other than public authorities provided that they have a legitimate interest in protecting con- sumers and that actions brought by the Consumers' Association pursuant to Para- graphs 28 and 29 of the Consumer Pro- tection Law are 'civil and commercial matters' within the meaning of Article 1 of the Convention. 22. The distinction between civil and com- mercial matters on the one hand and matters of public law on the other is familiar in the legal systems of the civil-law Member States, although it may not always be easy to distinguish between instances in 20. I agree that the Convention clearly which the State and its independent organs applies to a case such as the present. act in a private law capacity and those in

24. Nor does it follow from the fact that 26. The Court is asked essentially whether the Consumers' Association is among the the Austrian courts have jurisdiction pur- entities designated for the purpose of suant to Article 5(3) of the Convention Article 7(2) of Directive 93/13 that it is a over an action brought by a consumer public authority: it is apparent from the protection organisation for an injunction to terms of that provision 15 that, as the prohibit the use in Austria of unlawful or Consumers' Association and the Commis- unconscionable terms and conditions where the defendant is domiciled in another Member State and where the right 12 — Report by Professor Schlosser on the Convention on the of action is derived from statute. Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, OJ 1979 C 59, p. 71, paragraphs 23 and 25. 13 — Cited in note 10. 14 — Cited in note 10. 15 — See also the penultimate recital in the preamble to 27. Mr Henkel and the French Government Directive 93/13. submit that such an action does not fall

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within the scope of Article 5(3) on two such as that brought by the Consumers' grounds. First, it follows from its terms as Association (i) is not a matter 'relating to interpreted by the Court 16 that that provi- tort, delict or quasi-delict' and (ii) is not in sion cannot apply where the claimant has any event within the terms of Article 5(3) not alleged that it has suffered any damage because it seeks the prevention of future or, a fortiori, where no damage has yet acts rather than redress for a past act. arisen. Second, the Court has held that Article 5(3) covers all actions which seek to establish the liability of a defendant and which are not related to a 'contract' within the meaning of Article 5(1); 17 the action brought by the Consumers' Association, however, arises out of a contractual rela- tionship The meaning of 'tort, delict or quasi-delict'

33. The French Government submits that, the liability of a defendant and which are as derogations from the general rule that not related to a "contract" within the the courts of the defendant's domicile have meaning of Article 5(1)'. jurisdiction, the special rules set out in Article 5 of the Convention should be interpreted restrictively. I do not accept that argument. Restrictive interpretation of a derogation is sometimes justified: for example a derogation from a fundamental right must as such be restrictively inter- preted. But that approach should not in my 35. That broad wording clearly seems apt view be generalised to all exceptions. A to cover an action such as that brought by legislative exception, like any other legis- the Consumers' Association in the main lative provision, should be given its proper proceedings. In particular 'liability' — and meaning, determined in the light of its the equivalent French term 'responsabil- purpose and wording and the scheme and ité' — comfortably encompasses types of object of the instrument of which it forms legal liability other than the obligation to part. I prefer the alternative formulation make financial reparation, for example the used in the context of the Brussels Con- obligation at issue in the present case to vention by the Court, which has stated that refrain from certain types of unlawful 'the jurisdictional rules which derogate conduct. 23 from that general principle must not lead to an interpretation going beyond the situations envisaged by the Convention'. 20 The Court has moreover recognised that the situations envisaged by Article 5(3) are varied, stating that, 'by its comprehensive form of words, Article 5(3) of the Con- vention covers a wide diversity of kinds of 36. In Mines de Potasse d'Alsace 24 — the liability'. 21 first case on Article 5(3) — the Court explained that the option conferred on the plaintiff by that provision was 'introduced having regard to the existence, in certain clearly defined circumstances, of a particu- larly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings'. 25 The two connecting factors (place of harm- ful event and place of consequential dam- 34. That approach is reflected in the Court's ruling in Kalfelis 22 that the concept covers 'all actions which seek to establish 23 — See also the Opinion of Advocate General Geelhoed in Case C-334/00 Fonderie Officine Meccaniche Tacconi delivered on 31 January 2002 ECR I-7357, I-7359, para- graph 76 the Advocate General expresses the view that 20 — Case C-26/91 Handte [1992] ECR I-3967, paragraph 14 of failure to comply with a legal rule regulating conduct is a the judgment. tort, delict or quasi-delict within the meaning of Article 5(3). 21 — Mines de Potasse d'Alsace, cited in note 16, paragraph 18 of the judgment. 24 — Cited in note 16. 22 — Cited in note 9, paragraph 17 of the judgment. 25 — Paragraph 11 of the judgment.

age) were subsequently explained as 'par- is meant is that the concept of tort, delict ticularly helpful from the point of view of and quasi-delict covers all actions which the evidence and of the conduct of the seek to establish the liability of a defendant proceedings'. 26 The rationale of the special and which are not 'matters relating to a jurisdiction conferred by Article 5(3) thus c o n t r a c t ' within the meaning of appears to be that the courts for the place Article 5(1). As to the latter, it follows where the harmful event occurred are, for from the judgment of the Court in reasons relating to the sound adminis- Handte 29 that the phrase 'matters relating tration of justice and the efficacious con- to a contract' covers only situations in duct of proceedings, 27 best placed to hear which an obligation is freely assumed by actions arising therefrom. To my mind that one party towards another. The Con- objective is manifestly better served if the sumers' Association's action in the present court for the place where the alleged case is not however a 'matter relating to a harmful event occurs has jurisdiction to contract' in that sense: the Consumers' hear actions for an injunction preventing Association is rather —· as pointed out by unlawful conduct. 28 That will follow if the Austrian and German Governments actions such as the present case are and the Commission — asserting a right, regarded as 'matters relating to tort, delict specifically conferred on it by statute, to or quasi-delict' within the meaning of seek an order preventing unlawful conduct. Article 5(3). The United Kingdom moreover notes that the Consumers' Association is described by the referring court as enjoying a right 'to prevent damage to consumers', which it considers seems most naturally to be described as a matter of tort, delict or 37. It has been objected however that the quasi-delict; I agree with that proposition. action brought by the Consumers' Associ- ation concerns 'matters relating to a contract' since it concerns allegedly unlaw- ful contractual terms and conditions. On that basis, it is argued, the action could not 39. The French Government invokes the fall within Article 5(3) as interpreted by the judgment of the Court in Reichert and Court. Kockler 30 as authority for the proposition that actions which do not seek financial reparation cannot be within the scope of Article 5(3).

lienne in French law, whereby a creditor the action brought by the Consumers' may have a disposition of a right in rem in Association in the present case is that that immovable property rendered ineffective as action seeks to prevent a future allegedly against him on the ground that it was made harmful event whereas Article 5(3) is by its to the detriment of his rights by his debtor. terms limited to actions in respect of a That action may be instituted both against harmful event which has already occurred. dispositions made for consideration by the debtor when the beneficiary acts in bad faith and against transactions entered into without consideration by the debtor even if the beneficiary acts in good faith. A reading of the judgment suggests that that latter point was decisive: an action which may be 43. Admittedly, Article 5(3), which in directed against a third party who has not 'matters relating to tort, delict or quasi- committed any wrongful act cannot be delict' confers jurisdiction on 'the courts for regarded as an action 'which seeks to the place where the harmful event establish the liability of a defendant'.31 occurred', might appear to apply only That reasoning clearly cannot be trans- where the harmful event which is the basis posed to the present case, where Mr Henkel of the claim has already occurred. is alleged to have contravened statutory prohibitions on certain types of contractual clauses.

44. Even if that were the correct interpre- 41. In my view therefore an action such as tation, I do not see that it should prevent that brought by the Consumers' Associ- application of Article 5(3) in the present ation in the main proceedings is a 'matter case, where it appears from the order for relating to tort, delict or quasi-delict' reference that the action brought by the within the meaning of Article 5(3). Consumers' Association has been prompted by the use by Mr Henkel on several occasions of the allegedly unlawful terms and conditions. Both the Consumers' Association and the Austrian Government make this point. It might be expected moreover that such actions will normally be triggered by actual use of allegedly The application of Article 5(3) to purely unlawful contractual clauses. preventive actions

47. As indicated above, 33 the Court in Mines de Potasse d'Alsace 34 explained that 49. Moreover it is apparent that the equiv- the option conferred on the plaintiff by that alent provision (also Article 5(3)) of Regu- provision was 'introduced having regard to lation No 44/2001, 39 which has now as the existence, in certain clearly defined between most Member States superseded circumstances, of a particularly close con- the Convention, applies to actions to pre- necting factor between a dispute and the vent a threatened harmful act. In the court which may be called upon to hear it, absence of any clear and compelling reason with a view to the efficacious conduct of for interpreting the two provisions differ- the proceedings', in particular from the point of view of the evidence and of the 35 — Paragraphs 11 and 17 of the judgment. 36 — Dumez France and Tracoba, cited in note 27, paragraph 17 of the judgment. 32 — Cited in note 12, paragraph 134.2. 37 — Cited in note 19. 33 — See paragraph 36. 38 — See paragraph 40 ahove. 34 — Cited m note 16. 39 — Cited in note 3. See paragraph 6 above.

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ently, I consider it appropriate to interpret not be applicable to purely preventive them in the same way. Certainly the Com- actions because such actions are the subject mission in its proposal for the Regulation of Article 24 of the Convention. Article 24 took the view that the revised wording was provides: necessary in order to remove an ambiguity in the interpretation of the provision rather than to extend its scope. 40

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Conclusion

54. For the reasons given above I conclude that the question referred by the Oberster Gerichtshof should be answered as follows:

An action brought by a consumers' association under national consumer protection legislation to obtain an injunction prohibiting the use of unlawful or unconscionable general contractual terms and conditions is a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.

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