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

Recital 16 of Regulation No 1215/2012 underlines that, “[I]n addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice”. Articles 7 and 8 thus lay down rules of special jurisdiction which give the plaintiff options of jurisdiction that derogate  …

Definition

Recital 16 of Regulation No 1215/2012 underlines that, “[I]n addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice”. Articles 7 and 8 thus lay down rules of special jurisdiction which give the plaintiff options of jurisdiction that derogate from the general principle of jurisdiction of the court in which the defendant is domiciled. Special jurisdictional rules make it possible to sue a defendant who is domiciled in a Member State in the court of another member State where there is a particularly close connecting factor between the dispute and the court of that other Member State. 

The Commission, in its Green Paper , considered extending special jurisdiction rules to defendants domiciled in non-Member States on the grounds that “the good functioning of an internal market and the [Union]'s commercial policy [...] require that equal access to justice on the basis of clear and precise rules on international jurisdiction is ensured not only for defendants but also for claimants domiciled in the [Union]” and that “a common approach would strengthen the legal protection of [Union] citizens and economic operators and guarantee the application of mandatory [Union] legislation”. The Commission thus provided for the possibility to create additional jurisdiction grounds for disputes involving defendants from non-Member State by finding a balance between ensuring access to justice on the one hand and international courtesy on the other hand: - jurisdiction based on the carrying out of activities, provided that the dispute relates to such activities; - another based on the location of assets, provided that the claim relates to such assets; - a “forum necessitatis”, which would allow proceedings to be brought in a Member State where there would otherwise be no access to justice. Ultimately, Regulation No 1215/2012 has not extended the application of the rules on special jurisdiction laid down in Articles 7 and 8 to defendants from non-member States, except for certain lex specialis rules relative to employment or consumer contracts. The regulation does however create a new rule of special jurisdiction, which allows a person domiciled in a Member State to be sued in another Member State, as regards a civil claim for the recovery, based on ownership, of a cultural object as defined in point 1 of Article 1 of Directive No 93/7/EEC initiated by the person claiming the right to recover such an object, in the courts for the place where the cultural object is situated at the time when the court is seized .

Article 7 sets forth specific jurisdiction in seven distinct matters  which each justify the connection of the case with another jurisdiction forum than the defendant's domicile . Article 8 lists rules of derived jurisdiction used to extend the jurisdiction of the court seized, with a view to a better administration of justice. As additional jurisdictional rules which are derogatory from the general principle of Article 4, the rules in Articles 7 and 8 are strictly interpreted in accordance with the principle of legal certainty . In effect, special jurisdiction rules must enable a normally well-informed defendant reasonably to predict before which courts, other than those of the Member State in which he is domiciled, he may be sued . Therefore, the jurisdiction option provided for in Article 8(1) of the regulation which enables a claimant, where there are more than one defendant domiciled on the territory of Member States, to bring proceedings in the court of the domicile of one of them, does not apply to a dispute between an employee and his joint employers . Likewise, a court which has jurisdiction under Article 7(2) over an action so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is based on contract .                                              

Green Paper on the Review of Council Regulation (EC) No 44/2001, published on 21 April 2009 (COM(2009) 175 final), point 2.

Regulation No 1215/2012, Article 7(4), replacing Article 5 of Regulation No 44/2001 on special jurisdiction.

The essential part of the cases applying Article 7 covers matters relating to contract, tort and delict, the forum laid down in maritime matters (Article 5(7)) or trust (Article 5(6)) having not to-date given rise to any interpretation by the Court of justice. 

See Regulation No 1215/2012, recital 15: "The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor".

Case 189/87 Kalfelis v Schröder and others [1988] ECR 5565, LawLex200900001633JBJ.

Case C-26/91 Handte v TMCS [1992] ECR I-3967, LawLex200900002082JBJ.

Case C-462/06 Glaxosmithkline and Laboratoires Glaxosmithkline [2008] ECR I-3965, LawLex200900000909JBJ. Furthermore, any dispute concerning an individual contract of employment must be brought before a court designated in accordance with the jurisdiction rules laid down in Section 5 of Chapter II of the Regulation.

Case 189/87 Kalfelis v Schröder and others [1988] ECR 5565, LawLex200900001633JBJ. 

European Business Law

325. Definition

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Les décisions de justice citées dans ce paragraphe :

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325. Definition

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