C-18/02

'Subject to the provisions of this Conven- tion, persons domiciled in a Contracting

1 — Original language: English. 4. Council Regulation (EC) No 44/2001 of 2 — Convention of 27 September 1968. A consolidated version of the Convention as amended by the four subsequent 22 December 2000 on jurisdiction and the Accession Conventions is published in OJ 1998 C 27, p. 1. recognition and enforcement of judgments

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in civil and commercial matters 3 was 6. Article 2 of the Protocol on the inter- adopted under Articles 61(c) and 67(1) pretation of the Brussels Convention by the EC. The Regulation came into force on Court of Justice 5 provides in so far as 1 March 2002 and replaces the Convention relevant: as between most Contracting States. Den- mark however is not bound by the Regu- lation or subject to its application. 4

'The following courts may request the Court of Justice to give preliminary rulings on questions of interpretation: 5. Article 5 of the Regulation provides in so far as relevant:

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The main proceedings acting on behalf of DFDS rejected that request. Swedish legislation confers a right on Swedish trade unions to initiate disputes against vessels sailing under foreign flags. 6 By fax sent on 21 March 2001 SEKO served notice of limited industrial action 7. The main proceedings concern the legal- with effect from 28 March, instructing its ity of industrial action called by SEKO Swedish members not to accept employ- Sjöfolk Facket för Service och Kommuni- ment on the Tor Caledonia. That fax also kation (the Swedish union representing stated that SEKO was calling for sympathy maritime workers in service and communi- action, namely industrial action by other cations sectors, 'SEKO') against the Danish trade unions in support of SEKO's princi- shipowner DFDS Torline A/S ('DFDS') pal action. with the objective of securing a collective agreement for the Polish crew of the cargo ship Tor Caledonia, owned by DFDS and serving the r o u t e between G ö t e b o r g (Sweden) and Harwich (United Kingdom). 10. SEKO's proposed industrial action would have had no effect on DFDS without s y m p a t h y action since t h a t c o m p a n y neither employed nor intended to employ Swedish crew on the Tor Caledonia. How- ever on 3 April 2001 Svenska Transport- arbetareförbundet (the Swedish transport 8. The Tor Caledonia is registered in the workers union, 'STAF') gave notice of Danish international ship register and sympathy action with effect from 17 April thereby subject to Danish law. Working 2001 in the form of refusing to engage in on board at the material time were Danish any work whatsoever relating to the Tor officers and Polish sailors. The Polish crew Caledonia, which would prevent the ship were employed on the basis of individual from being moored, loaded or unloaded in contracts in accordance with a framework Göteborg. It is clear from the wording of agreement between a number of Danish that notice that the sympathy action was in trade unions on the one hand and three response to SEKO's request. Danish associations of shipping companies on the other. Those contracts were gov- erned by Danish law.

13. At a preliminary hearing before the Arbejdsret on 11 April 2001 SEKO agreed to suspend its notified action pending the decision of the Arbejdsret. SEKO had no authority however to suspend the sympathy 17. In the proceedings before the Arbejd- action. sret SEKO represented by LO (hereafter together referred to as SEKO) submits that that court has no jurisdiction. It argues in particular that the derogation in Article 5(3) of the Brussels Convention is inapplicable since DFDS has not brought any claim for compensation. Moreover since SEKO will 14. On 16 April 2001 DFDS decided to have to revoke its notice of industrial withdraw the Tor Caledonia from the action if the Arbejdsret rules that that Göteborg-Harwich line because of the risk action would be unlawful there will be no that the ship might not be able to maintain basis for a subsequent claim for compen- uninterrupted operations. It subsequently sation. SEKO accepts that there is a risk replaced that ship with another leased for that a lawful collective dispute will gener- the purpose. ate unlawful sympathy action which may

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result in damage and give rise to claims for (b) Is it necessary, as the case may be, that compensation but considers that the mere any harm incurred must be a certain or fact of such a risk does not mean that a case probable consequence of the industrial which is to address solely the legality of the action concerned in itself, or is it principal dispute is a matter 'relating to sufficient that that industrial action is tort, delict or quasi-delict' within the a necessary condition governing, and meaning of Article 5(3) of the Convention. may constitute the basis for, sympathy SEKO concludes that proceedings against it actions which will result in harm? concerning its notice of industrial action fall under the main rule in Article 2 of the Convention and should therefore have been brought before the Swedish courts.

19. Written observations have been pres- action. The Danish Government adds that ented by DFDS, SEKO, the Danish, Swed- the Arbejdsret is a court of first and last ish and United Kingdom Governments and instance; its decisions are accordingly not the Commission, all of whom except for susceptible to appeal. In the order for the United Kingdom were represented at reference the Arbejdsret states that it must the hearing. therefore be regarded as having the same status as an appellate court.

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24. To do so would moreover, as the remedy under national law' may request a Danish Government submits, mean that ruling. The Arbejdsret would clearly fall questions concerning the interpretation of within that definition. the Convention in certain labour law con- texts could never be put to the Court. That cannot have been the intention of the authors of the Convention and the Proto- col.

27. I am accordingly of the view that the Arbejdsret has jurisdiction under the Proto- col on the interpretation of the Convention to request a preliminary ruling from the Court of Justice.

2 5 . It may in addition be noted that Schlosser 1 1 was of the view that the e x p r e s s i o n ' a p p e l l a t e c a p a c i t y ' in Article 2(2) of the Protocol 'should not be construed in a narrow technical sense, but in the sense of any challenge before a higher jurisdiction', which suggests t h a t the Question 1(a) expression encompasses any court whose decisions are final.

3 1 . As the Commission points out, the 33. SEKO however submits that the pro- language of Article 5(3), in particular in ceedings before the Arbejdsret have no the German 1 3 and English versions, is connection with the concept of 'matters broad, suggesting that in order to fall relating to tort, delict or quasi-delict' within the provision an action must simply within the meaning of Article 5(3) since relate to tort, delict or quasi-delict. The DFDS bases its claim not on the rules case-law also suggests that the concept concerning tortious liability but solely on should be generously interpreted. In Mines the alleged unlawfulness of the notice of de Potasse d'Alsace, 1 4 its first decision on industrial action. There is no claim for Article 5(3), the Court stated that 'by its payment, for example of damages, before comprehensive form of words, Article 5(3) the Arbejdsret, which in any event has no of the Convention covers a wide diversity jurisdiction to hear such a claim. of kinds of liability'. Subsequently in Kal- felis 15 the Court explained that 'the con- cept of "matters relating to tort, delict and quasi-delict" covers all actions which seek to establish the liability of a defendant and which are not related to a "contract" 34. I do not accept that argument. within the meaning of Article 5(1)'.

from the order for reference that Denmark 37. Finally, it is now clear from the Court's has conferred exclusive jurisdiction on the judgment in Henkel, 1 8 delivered after the Arbejdsret to determine the lawfulness of reference was made and the observations industrial action while the ordinary courts lodged in the present case, that Article 5(3) alone have jurisdiction to adjudicate claims may apply to proceedings which do not for consequential damage. In that context it include a claim for payment. The question is clearly artificial to regard the two types at issue in that case was essentially whether of proceedings as distinct for the purpose of an action brought by a consumer protec- Article 5(3). tion organisation seeking an injunction to prevent a trader from using terms con- sidered to be unfair in contracts with private individuals was a matter relating to a contract within the meaning of Article 5(1) of the Convention or a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3). The Court stated that such an action sought to estab- lish the liability of the defendant in tort, delict or quasi-delict 'in respect of the trader's non-contractual obligation to refrain in his dealings with consumers from certain behaviour deemed unacceptable by the legislature'. 1 9

task of associations such as the applicant for reasons relating to the sound adminis- association to prevent. 2 0 tration of justice and the efficacious con- duct of proceedings... The courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence. Those considerations are equally relevant 39. In the present case, the action brought whether the dispute concerns compensation by the applicant is clearly analogous to the for damage which has already occurred or action at issue in Henkel in that it seeks to relates to an action to prevent the occur- establish the liability of SEKO in tort, delict rence of damage.' 2 1 or quasi-delict in respect of its non-con- tractual obligation to refrain from certain behaviour deemed unacceptable by the legislature. Moreover, as the Commission points out and as is clear from the wording of question 1(b), the action brought by DFDS is, unlike that at issue in Henkel, directly linked to SEKO's potential liability 4 1 . To my mind, all those considerations in damages since the finding of illegality apply equally to a case such as that at issue sought in the first action is a precondition in the main proceedings, where national to a determination of that liability in the rules on the allocation of jurisdiction separate action pending before the Sø- og require that, before an action for damages Handelsret, Copenhagen. flowing from a party's conduct may be brought in one court, a declaration that that conduct is unlawful must be obtained in another court.

46. First, SEKO considers that Article 5(3) will apply only where there is actual damage resulting in financial loss which is the subject of a claim for compensation. 43. By question 1(b) the Arbejdsret asks whether it is necessary for the application of Article 5(3) in circumstances such as those at issue that any harm incurred be a certain or probable consequence of the industrial action concerned or whether it is sufficient that that industrial action is a necessary condition governing, and may constitute the basis for, sympathy actions 47. It is clear however from the case-law of which will result in harm. the Court that it is not necessary for the purpose of Article 5(3) to show actual damage resulting in financial loss. 2 2 More- over it is manifestly impossible to demon- strate such damage where the proceedings at issue seek an order preventing the impugned conduct; such proceedings may 44. The question arises because the princi- none the less, as explained above, be pal industrial action notified by SEKO 'matters relating to tort, delict or quasi- would not in itself cause harm to DFDS. delict' within the meaning of Article 5(3). 2 3 The sympathy action notified by STAF in That may also, depending on the circum- response to SEKO's request, however, stances, be so in the case of proceedings would cause such harm. The notion of seeking a declaration that certain conduct, sympathy action pre-supposes principal suspended pending judgment, is illegal, industrial action. Moreover the order for such as the proceedings before the Arbejds- reference states that as a matter of both ret in the present case. Danish and Swedish law there must be a dispute which has the purpose of securing a collective agreement before other trade 22 — Shevill, cited in note 17, paragraph 40 of the judgment; Henkel, cited in note 18, paragraph 42. union organisations may notify sympathy 23 — Henkel, cited in note 18 and discussed in paragraphs 37 to disputes. 40 above.

49. I have already explained in the context of question 1(a) why I consider that, in the circumstances of the present case, namely where the proceedings concerning the legal- ity of the principal action are an essential precursor to separate proceedings for dam- ages for harm resulting from that action, the first proceedings are a matter relating to tort, delict or quasi-delict within the mean- ing of Article 5(3). In its submissions on question 1(b), SEKO is essentially arguing that the first proceedings cannot in any event be a matter relating to tort, delict or quasi-delict if it is neither certain nor probable that harm will directly result from 52. None the less it is clear that there may the principal action. be circumstances in which the court first seised will be required to make at least a preliminary assessment of the merits in order to determine whether the case before it is a matter 'relating to tort, delict or q u a s i - d e l i c t ' w i t h i n the m e a n i n g of Article 5(3). Otherwise a defendant could, simply by pleading that there was no consequential harm to the claimant and hence no tort, delict or quasi-delict, oust 50. That argument raises the question how the jurisdiction of the court seised. far the court first seised of proceedings on the basis of Article 5(3) must go into the merits of the case in order to determine 24 — Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 27 of the judgment. whether it has jurisdiction in accordance 25 — See Shevill, cited in note 17, paragraph 38, and more with that provision. generally paragraphs 35 to 4 1 , of the judgment.

53. In the analogous context of Article 5(1) ance (other than solely to contest the of the Convention, which confers jurisdic- jurisdiction 2 7 ), 'the court shall declare of tion in matters relating to a contract on the its own motion that it has no jurisdiction courts of the place of performance of the unless its jurisdiction is derived from the obligation in question, the Court has stated provisions of the Convention'. According that 'the national court's jurisdiction to to Jenard, 'Article 20 is one of the most determine questions relating to a contract important articles in the Convention:... the includes the power to consider the exist- court must of its own motion examine ence of the constituent parts of the contract whether it has jurisdiction under the Con- itself, since that is indispensable in order to vention.... It is not sufficient for the court enable the national court in which proceed- to accept the submissions of the plaintiff as ings are brought to examine whether it has regards jurisdiction; the court must itself jurisdiction under the Convention. If that ensure that the plaintiff proves that it has were not the case, Article 5(1)... would be international jurisdiction.' 2 8 in danger of being deprived of its legal effect, since it would be accepted that, in order to defeat the rule contained in that provision, it is sufficient for one of the parties to claim that the contract does not exist. On the contrary, respect for the aims and spirit of the Convention demands that that provision should be construed as meaning that the court called upon to decide a dispute arising out of a contract may examine, of its own motion even, the essential preconditions for its jurisdiction, 55. With regard to the standard of proof having regard to conclusive and relevant required, the Court was asked in Shevill 29 evidence adduced by the party concerned, whether the court seised, in determining establishing the existence or the inexistence whether it has jurisdiction as the court of of the contract.' 2 6 the place where the damage occurred pur- suant to Article 5(3), is required to follow specific rules different from those laid down by its national law in relation to the criteria for assessing whether the event in question is harmful and in relation to the evidence required of the existence and extent of the harm alleged by the victim. The Court ruled that those questions must be settled solely by the national court 54. That approach moreover reflects the seised, applying the substantive law deter- first paragraph of Article 20 of the Con- mined by its national conflict of laws rules, vention, which provides that, where a provided that the effectiveness of the Con- defendant domiciled in one Contracting vention is not thereby impaired. State is sued in a court of another Con- tracting State and does not enter an appear- 2 7 — See Article 18. 28 — Report on the Convention on jurisdiction and the enforce- 26 — Case 38/81 Effer [1982] ECR 825, paragraph 7 of the ment of judgments in civil and commercial matters, judgment; see also paragraphs 3 to 6 of the Opinion of OJ 1979 C 59, p. 1. Advocate General Reischl. 29 — Cited in note 17, paragraphs 34 to 41 of the judgment.

57. The terms of question 1(b) suggest however that that is not the case here, since the national court describes the prin- cipal industrial action as a necessary con- dition which governs and may constitute the basis for sympathy actions which will result in harm. Moreover SEKO accepts Question 1(c) that there is a risk that any industrial action may lead to unlawful sympathy action. It seems therefore that any harm caused by sympathy action cannot be described as an

59. By question 1(c) the Arbejdsret asks 30 — Marinari, cited in note 2 1 , paragraph 19 of the judgment. whether the fact that implementation of 31 — Case C-51/97 Réunion Européenne [1998] ECR I-6511, notified collective industrial action was, paragraph 34 of the judgment. after the proceedings had been brought, 32 — Case C-26/91 Handle [1992] ECR I-3967, paragraph 18 of the judgment. suspended by the notifying party until the

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referring court's ruling on the issue of its on its legality deprives the proceedings of l e g a l i t y a f f e c t s t h e a p p l i c a t i o n of any compensatory nature they might have Article 5(3) in circumstances such as those had. of the present case.

62. As a preliminary point I would note that, as discussed in the context of ques- 60. DFDS, the Danish and United Kingdom tions 1(a) and 1(b), the mere fact that Governments and the Commission consider proceedings do not seek compensation is that that question should be answered in not sufficient to preclude the application of the negative; SEKO in contrast submits that Article 5(3); to the extent that SEKO's suspension of the action in those circum- argument is based on the contrary assump- stances takes the proceedings outside the tion it is not correct. scope of Article 5(3).

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the State in which he is domiciled, he may after the proceedings have been brought, be sued'. 3 5 It would clearly undermine suspended by the notifying party until the such legal certainty if a court which had court seised has ruled on the issue of its jurisdiction in accordance with the Con- legality. vention when proceedings were brought could be deprived of such jurisdiction as a result of the defendant's conduct thereafter.

Question 2

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with Danish rules of private international the libel was issued and put into circu- law. lation.

69. In Mines de Potasse d'Alsace 36 the 71. In the present case, the event giving rise Court ruled that 'the meaning of the to the damage is clearly the notification of expression "place where the harmful event industrial action. By analogy with Shevill, occurred" in Article 5(3) must be estab- that event must be regarded as originating lished in such a way as to acknowledge that in Sweden, where the notifications were the plaintiff has an option to commence issued and sent. proceedings either at the place where the damage occurred or the place of the event giving rise to it'. The Court explained that both those places could constitute a sig- nificant connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be 72. With regard to the place where the particularly helpful in relation to the evi- damage occurred, guidance as to which is dence and the conduct of the proceedings, in particular sought by the Arbejdsret, the and that to decide in favour only of the Court stated in Shevill that that place is the place of the event giving rise to the damage place where the event giving rise to the would, in an appreciable number of cases, damage, entailing tortious, delictual or cause confusion between the heads of quasi-delictual liability, produced its harm- jurisdiction laid down by Articles 2 and ful effects upon the victim and that, in the 5(3) of the Convention, so that the latter case of an international libel through the provision would, to that extent, lose its press, the injury caused to the honour, effectiveness. 3 7 reputation and good name of a natural or legal person occurs in the places where the publication is distributed, when the victim is known in those places. 3 9

which it appears that the applicant is (sequestration of promissory notes lodged seeking compensation in the proceedings by Mr Marinari and Mr Marinari's sub- before the Sø- og Handelsret were the sequent imprisonment) occurred in one withdrawal from service of the Tor Cale- State; only the alleged consequential dam- donia and the leasing of the replacement age (financial losses) could have been vessel which DFDS considered to be necess- suffered in another State. The Court ruled ary in the light of the notices of industrial that the term 'place where the harmful action. Those effects would appear to have event occurred' cannot be construed so been produced in Denmark, although as the extensively as to encompass any place United Kingdom submits it is ultimately for where the adverse consequences can be felt the national court to make the appropriate of an event which has already caused findings of fact in order to determine where damage actually arising elsewhere; con- the event giving rise to the damage actually sequently, the term cannot include the produced its harmful effects. 4 0 place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Contracting State. 42

74. SEKO and the Commission argue how- ever, on the basis of Marinari, 41 that the term 'place where the harmful event occur- red' does not cover the place where the victim claims to have suffered financial 76. Marinari will not therefore be appli- damage following upon initial damage cable if all the damage occurs in one arising and suffered by him in another Contracting State. It is for the national State. Those parties conclude that in the court to assess whether that is so in the circumstances of the present case the place present case. where the harmful event occurred cannot therefore be Denmark but must be Sweden.

79. Finally I would stress that a court s e i s e d of p r o c e e d i n g s p u r s u a n t t o Article 5(3) of the Convention must, when determining whether it has jurisdiction on the basis of the place where the harmful 78. I agree that the nationality of the Tor event occurred, have regard to the case-law Caledonia does not seem to be relevant to of the Court on the Convention, and in the questions referred to the Court in the particular to the overriding principle that present case. None of the factors mentioned the rule of special jurisdiction laid down in by DFDS or the Danish Government in that Article 5(3) is based on the existence of a connection is in my view material to the p a r t i c u l a r l y close c o n n e c t i n g factor allocation of jurisdiction in accordance between a dispute and the courts for the with the Brussels Convention: it is clear place where the harmful event occurred from the Court's case-law both that pro- which justifies the attribution of jurisdic- ceedings to prevent the commission of tion to those courts for reasons relating to allegedly unlawful acts may fall within the sound administration of justice and the Article 5(3) of the Convention and that efficacious conduct of proceedings. 4 3 such proceedings may be brought either at the place where the damage occurred or at the place of the event giving rise to it. In the 43 — Henkel, cited in note 18, paragraph 46 of the judgment. See by analogy, in the context of determining the present case the damage in question is not applicable law, Article 3(3) of the Proposal for a Regu- lation of the European Parliament and the Council on the the proposed change to the conditions of law applicable to non-contractual obligations ('Rome II'), employment on board the ship but the COM(2003) 427 final, presented by the Commission on 22 July 2003, which provides that, notwithstanding the withdrawal of the ship from service and its general rule that the applicable law is that of the country in which the damage arises or is likely to arise, 'where it is replacement by another leased vessel which clear from all the circumstances of the case that the DFDS considered to be necessary in the non-contractual obligation is manifestly more closely connected with another country, the law of that other light of the notices of industrial action. country shall apply'.

(c) Such proceedings fall within the scope of 'matters relating to tort, delict or quasi-delict' within the meaning of Article 5(3) of the Brussels Convention even where implementation of the industrial action whose illegality those proceedings seek to have established is, after the proceedings have been brought, suspended by the notifying party until the court seised has ruled on the issue of its legality.

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(2) Where proceedings are brought before the courts of a Contracting State on the basis that they are the courts of the place where the damage occurred for the purpose of Article 5(3) of the Brussels Convention as interpreted by the Court of Justice, it is for those courts to determine, in accordance with the Court's case-law, the place where the event giving rise to the damage, entailing tortious, delictual or quasi-delictual liability, produced its harmful effects upon the claimant. Where the damage results from the notification by a trade union of collective industrial action for the purpose of securing an agreement covering the work of seamen on board a ship registered in one Contracting State which sails to another Contracting State, the nationality of the ship is not a relevant criterion for determining where the damage occurred.

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