European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Regulation No 1215/2012 applies in civil and commercial matters whatever the nature of the court or tribunal (Article 1). As there is no definition of the concept of “civil and commercial matters”, the Court of Justice  has chosen a principle of interpretation aimed at ensuring that the rights and obligations of the Member States and their respective citizens do not vary from State to State. The c …

Concept of 'civil and commercial matters'

Regulation No 1215/2012 applies in civil and commercial matters whatever the nature of the court or tribunal (Article 1). As there is no definition of the concept of “civil and commercial matters”, the Court of Justice  has chosen a principle of interpretation aimed at ensuring that the rights and obligations of the Member States and their respective citizens do not vary from State to State. The concept of civil and commercial matters must be regarded “as independent  and must be interpreted by reference, first, to the objectives and scheme [of the regulation] and, secondly, to the general principles which stem from the corpus of the national legal systems” . According to the Court of Justice , what falls within civil and commercial matters must be determined essentially “by reason of the legal relationships between the parties to the action or of the subject-matter of the action”. The legal relationship between the payee of a promissory note, issued in incomplete form and subsequently completed, and the giver of an aval thereon falls within the concept of matters relating to a contract pursuant to Article 7(1) of Regulation No 1215/2012, insofar as by signing the promissory note on its face under the indication “per aval”, the giver of the aval voluntarily consented to act as the guarantor of the obligations of the maker of that promissory note .

Therefore, a judgment rendered in a dispute between a public authority and a person governed by private law, where the public authority does not exercise powers conferred by public law , proceedings under employment law , an action for the removal of unfair terms brought by a consumer protection association , or an action for compensation for injury to an individual resulting from a criminal offense, joined to criminal proceedings , or the dispute the object of which is the authorization of enforcement of six orders by which the court referred to for patent infringement prohibited one of the parties to the proceedings from importing, possessing and marketing certain pesticides, on pain of a fine, even if the order imposing the fine explicitly mentions the penal and punitive nature of that fine fall within the scope of the Regulation . The action brought by an applicant on the basis of an assignment of claims which has been granted by the liquidator appointed in insolvency proceedings the subject-matter of which is the right to have a transaction set aside which the national law applicable in these proceedings confers upon the liquidator also falls within the concept of civil and commercial matters where the action is exercised by the assignee in his own interest and for his personal benefit and is not closely connected with the insolvency proceedings , as does an action concerning a claim for damages arising from liability for a wrongful act, brought by the liquidator in insolvency proceedings and the proceeds of which, if the claim succeeds, accrue to the general body of creditors, and which, even if the existence of a link with insolvency proceedings is undeniable, may be brought by the creditors individually, whether before, during or after the conduct of the insolvency proceedings . This is also the case for actions seeking legal redress for damage resulting from infringements of European Union competition law  and for those concerning the payment of the wage supplements for annual leave pay insofar as the employer’s obligation to pay the wage supplements is intrinsically linked with the rights, which are of a civil nature, of workers to annual leave pay .

The fact that the wording of Article 1 is very general has raised the issue of whether ancillary claims - and in particular interim or protective measures referred to in Article 35 of the regulation - may come within civil and commercial matters. On the other hand, civil and commercial matters do not include an action aimed at substituting the defendant's consent in the context of an application for release from the sequestration of an object, even though this action is an incidental procedure to the sequestration of the object seized by the law enforcement authorities .

According to the Court of Justice, ancillary measures fall within the scope of application of the regulation according to the subject-matter with which they are concerned and not according to the subject-matter involved in the principal claim . The fact that the judgments are provisional or definitive is irrelevant to assess whether they have a civil and commercial nature . The applicability of the regulation to provisional measures is determined only by the nature of the rights which they serve to protect . Therefore, provisional measures relating to matters excluded from the scope of application of the regulation pursuant to Article 1 may not fall within its scope of application. This is the case for provisional measures which are closely connected to questions as to the status of the persons involved in divorce proceedings or proprietary legal relations resulting directly from the matrimonial relationship or the dissolution thereof , such as the application for provisional measures to secure the disclosure of a document which might be used as evidence in an action concerning the husband's management of his wife's property connected with rights in property arising out of a matrimonial relationship . 

Case 29/76 LTU v Eurocontrol [1976] ECR 1541, LawLex200900001822JBJ: “it is necessary, in order to ensure, as far as possible, that the rights and obligations which derive from [the regulation] for the Contracting States and the persons to whom it applies are equal and uniform, that the terms of [Article 1 of the regulation] should not be interpreted as a mere reference to the internal law of one or other of the States concerned”.

The “independent” concept, found for the first time by the Court in the aforementioned Eurocontrol judgment, has then been used to define the contractual matter (Case 9/87 Arcado v Haviland [1988] ECR 1539, LawLex200900002313JBJ), matters relating to tort, delict and quasi-delict (Case 189/87 Kalfelis v Schröder and others [1988] ECR 5565, LawLex200900001633JBJ), the concepts of sale of goods on installment credit terms (Case 150/77 Ott [1978] ECR 1431, LawLex200900001568JBJ), secondary establishment (Case 33/78 [1978] Somafer SA, LawLex201100000625JBJ), proceedings concerned with the registration or validity of patents (Case 288/82 Duijnstee [1983] ECR 3663, LawLex200900001501JBJ), related actions (Case C-406/92 Tatry v Maciej Rataj [1994] ECR I-5439, LawLex200900000723JBJ) or lis pendens (Case 144/86 Gubisch Maschinenfabrik v Palumbo [1987] ECR 4861, LawLex200900001552JBJ).

Case C-213/10 F-Tex [2012], LawLex201200000634JBJ.

Case C-535/17 NK v BNP Paribas Fortis NV, Judgment of 6 February 2019, LawLex201900000173JBJ. 

Case C-302/13 flyLAL-Lithuanian Airlines, Judgment of 23 October 2014, LawLex201400001129JBJ.

Case C-579/17 BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse, Judgment of 28 February 2019, LawLex201900001327JBJ.

Case C-494/23 QE and IJ, Judgment of 4 October 2024, LawLex202400008218JBJ.

Case 120/79 De Cavel [1980] ECR 731, LawLex200900001514JBJ: maintenance obligations which themselves fall within the concept of civil and commercial matters, fall within the scope of Brussels I Regulation, regardless of whether the proceedings relating to maintenance obligations are the ancillary to divorce proceedings which, by their object, fall outside the regulation.

Case 143/78 De Cavel [1979] ECR 1055, LawLex200900001550JBJ.

Case 25/81 C.H.W. v G.J.H. [1982] ECR 1189, LawLex200900001737JBJ.

Case 29/76 LTU v Eurocontrol [1976] ECR 1541, LawLex200900001822JBJ, point 3.

Case 29/76 LTU v Eurocontrol [1976] ECR 1541, LawLex200900001822JBJ, point 4; See Case 814/79 Netherlands v Rüffer [1980] ECR 3807, LawLex200900002041JBJ.

Case C-419/11 Ceská sporitelna v Gerald Feichter, Judgment of 14 March 2013, LawLex201300000367JBJ.

Case C-266/01 Préservatrice Foncière TIARD [2003] ECR I-4867, LawLex200900001337JBJ: a claim by which a Member State seeks to enforce a private-law guarantee contract falls within the concept of civil and commercial matters within the meaning of Article 1, insofar as the legal relationship between the creditor and the guarantor does not entail the exercise by the State of powers are going beyond those existing under the rules applicable to relations between private individuals; along the same lines, C-433/01 Blijdenstein [2004] ECR I-981, LawLex200900000802JBJ: an action for recovery whereby a public body seeks from a person governed by private law reimbursement of sums paid by way of an education grant to a maintenance creditor, to whose rights it is subrogated, falls within civil matters within the meaning of the regulation, where the subrogation in question is governed by civil law; Case C-645/11 Land Berlin v Ellen Mirjam Sapir, Michael J. Busse, Mirjam M. Birgansky, Gideon Rumney, Benjamin Ben-Zadok, Hedda Brown, Judgment of 11 April 2013, LawLex201300000574JBJ, the concept of “civil and commercial matters” includes an action for  recovery of an amount unduly paid in the case where a German public body  which is required, by an authority established by legislation designed  to provide compensation for acts of persecution carried out under the  Nazi regime, to pay to a victim, by way of compensation, part of the  proceeds of the sale of a building but which has paid the total sale  price due to an error and seeks to recover the amount unduly paid; also see Case C-49/12 The Commissioners for Her Majesty's Revenue & Customs v Sunico ApS, M & B Holding ApS, Sunil Kumar Harwani, Judgment of 12 September 2013, LawLex201300001280JBJ, an action whereby a public authority of one Member State claims, from natural and legal persons resident in another Member State, damages in respect of loss caused by a conspiracy to commit VAT fraud in the first  Member State falls within the scope of “civil and commercial matters” insofar as the legal relationship between the parties is not a legal relationship based on tax law but is based on the law of tort of that Member State.

Case 25/79 Sanicentral SA v Collin [1979] ECR 3423, LawLex200900001736JBJ.

Case C-167/00 Henkel [2002] ECR I-8111, LawLex200900000666JBJ: an action for the removal of unfair terms brought by a consumer protection organization is a civil and commercial matter insofar as it seeks to make relationships governed by private law subject to review by the courts.

Case C-172/91 Sonntag v Waidmann [1993] ECR I-1963, LawLex200900000718JBJ: a civil action for compensation for injury to an individual resulting from a criminal offence falls within the material scope of application of the regulation, even though it is joined to criminal proceedings, insofar as “in the legal systems of the [Member] States the right to obtain compensation for injury suffered as a result of conduct regarded as culpable in criminal law is generally recognized as being a civil-law right”.

Case C-406/09 Realchemie Nederland, LawLex201200000131JBJ.

European Business Law

314. Concept of 'civil and commercial matters'

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314. Concept of 'civil and commercial matters'

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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