CJEC, 1st chamber, May 15, 1990, No C-365/88

THE COURT ( First Chamber )

1 By judgment dated 9 December 1988 which was received at the Court on 15 December 1988, the Hoge Raad der Nederlanden referred to the Court pursuant to the protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ( hereinafter referred to as "the Convention ") three questions for a preliminary ruling on the interpretation of Article 6(2 ) of that Convention .

2 Those questions were raised in proceedings between Kongress Agentur Hagen GmbH ( hereinafter referred to as "Hagen "), whose registered office is in Duesseldorf ( Federal Republic of Germany ), and Zeehaghe BV, whose registered office is in The Hague ( The Netherlands ).

3 It appears from the documents before the Court that Hagen cancelled a reservation made at the request and on behalf of Garant Schuhgilde eG ( hereinafter referred to as "Schuhgilde "), Duesseldorf, with Zeehaghe for a large number of hotel rooms, whereupon Zeehaghe summoned Hagen to appear before the Arrondissementsrechtbank ( District Court ), The Hague, claiming payment of a sum of money, together with interest and costs, for breach of contract . Hagen contended that the court should declare that it had no jurisdiction to entertain the action or, in the alternative, join Schuhgilde, as its principal, to answer a claim for indemnity .

4 The Arrondissementsrechtbank refused leave to bring an action on a warranty or guarantee on the ground that it would delay and complicate the main proceedings . Hagen appealed against that judgment to the Gerechtshof ( Regional Court of Appeal ), The Hague, arguing that Article 6(2 ) of the Convention required the court seised of the original proceedings to grant leave to bring an action on a warranty or guarantee "unless these were instituted solely with the object of removing (( the third party )) from the jurisdiction of the court which would be competent in his case", this exception being set out in Article 6(2 ) itself .

5 The Gerechtshof rejected that argument and upheld the decision of the Arrondissementsrechtbank on the ground that Article 6 did not impose an obligation but merely created a power to grant leave to bring an action on a warranty or guarantee .

6 Hagen appealed against that judgment on a point of law to the Hoge Raad der Nederlanden, which decided to refer the following questions to the Court for a preliminary ruling :

"A -If a defendant domiciled in a Contracting State is sued on the basis of Article 5(1 ) of the Brussels Convention in another Contracting State, may the court in the latter State derive from Article 6(2 ) of the Brussels Convention jurisdiction to entertain an action on a warranty or guarantee brought by the defendant against a person domiciled in a Contracting State other than that of the court?

B -Must Article 6(2 ) of the Brussels Convention be interpreted as meaning that the court is bound to grant leave for the action on a warranty or guarantee to be brought unless the exception provided for in that provision applies?

C -If question B is answered in the negative, may the court apply the procedural rules of its national law in assessing whether the request for leave to bring the action on a warranty or guarantee should be granted or do the provisions of the Brussels Convention mean that the court must consider the request in the light of criteria other than those laid down in its national procedural law and, if so, what are those criteria?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The first question

8 The first question is concerned with the case in which the court having jurisdiction under Article 5(1 ) of the Convention, which derogates from the general principle laid down in Article 2, is requested to grant the defendant leave to bring an action on a warranty or guarantee against a person domiciled in a Contracting State other than that of the court .

9 Hagen and the parties which have submitted observations to the Court infer from the general terms in which Article 6(2 ) is couched that the rule that a person may be sued as a third party in an action on a warranty or guarantee "in the court seised of the original proceedings" applies irrespective of the head of jurisdiction by virtue of which the court was seised of the original proceedings .

10 It is appropriate to point out in limine that Article 6(2 ), which occurs in Section 2 of the Convention entitled "Special jurisdiction", constitutes, in the same way as Article 5(1 ), an exception to the rule of jurisdiction laid down in Article 2 under which the courts in the State in which the defendant is domiciled are to have jurisdiction .

11 Article 6(2 ) makes provision for a special jurisdiction, which the plaintiff may choose because of the existence, in clearly defined situations, of a particularly 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 ( judgment of 22 November 1978 in Case 33-78 Somafer SA v Saar-Ferngas AG (( 1978 )) ECR 2183 ). The Convention thus enables the entire dispute to be heard by a single court . Consequently, the related nature of the main action and the action on a warranty or guarantee suffices to found jurisdiction on the part of the court in which the action on a warranty or guarantee has been brought, irrespective of the basis on which it has jurisdiction in the original proceedings; in this respect, the jurisdiction provided for in Article 2 and that provided for in Article 5 are equivalent .

12 The answer to the first question must therefore be that where a defendant domiciled in a Contracting State is sued in a court of another Contracting State pursuant to Article 5(1 ) of the Brussels Convention, that court also has jurisdiction by virtue of Article 6(2 ) of the Brussels Convention to entertain an action on a warranty or guarantee brought against a person domiciled in a Contracting State other than that of the court seised of the original proceedings .

The second and third questions

13 These two questions seek to establish whether Article 6(2 ) of the Convention requires the court to grant leave to bring an action on a warranty or guarantee, provided that proceedings were not brought with the object of removing the third party from the jurisdiction of the court which would be competent in his case, or whether, on the contrary, the court may assess the admissibility of the application for leave in the light of the rules of the national procedural law .

14 Hagen, the French Government and the Government of the Federal Republic of Germany interpret Article 6(2 ) as an independent provision . In their view, this follows from considerations relating to the sound administration of justice : the full legal protection which the Contracting States are bound to guarantee the parties where one of their courts has jurisdiction cannot be restricted by the application of national procedural rules .

15 In its written observations, the Commission also supported this view, which, it stated, would have the advantage of simplicity and would ensure the uniform application of the Convention : on this view, the national court seised of the original proceedings would be bound to grant leave to bring an action on a warranty or guarantee .

16 At the hearing, the Commission argued that jurisdiction is only one of the conditions governing the admissibility of the application; the court seised must first decide whether it has jurisdiction under the provisions of the Convention and then determine whether the application satisfies such other conditions for an action on a warranty or guarantee as are laid down by the lex fori .

17 It should be stressed that the object of the Convention is not to unify procedural rules but to determine which court has jurisdiction in disputes relating to civil and commercial matters in intra-Community relations and to facilitate the enforcement of judgments . It is therefore necessary to draw a clear distinction between jurisdiction and the conditions governing the admissibility of an action .

18 With regard to an action on a warranty or guarantee, Article 6(2 ) therefore merely determines which court has jurisdiction and is not concerned with conditions for admissibility properly so called .

19 Moreover, the Court has consistently held that, as regards procedural rules, reference must be made to the national rules applicable by the national court ( see in particular, as regards the concept of lis alibi pendens, the judgment of 7 June 1984 in Case 129-83 Zelger v Salinitri (( 1984 )) ECR 2397, and, as regards the conditions for the enforcement of a foreign judgment, the judgments of 2 July 1985 in Case 148-84 Deutsche Genossenschaftsbank v Brasserie du pêcheur SA (( 1985 )) ECR 1981, and of 4 February 1988 in Case 145-86 Hoffmann v Krieg (( 1988 )) ECR 645 ).

20 It should be noted, however, that the application of national procedural rules may not impair the effectiveness of the Convention . As the Court has held, in particular in its judgment of 15 November 1983 in Case 288-82 Duijnstee v Goderbauer (( 1983 )) ECR 3663, a court may not apply conditions of admissibility laid down by national law which would have the effect of restricting the application of the rules of jurisdiction laid down in the Convention .

21 Accordingly, an application for leave to bring an action on a warranty or guarantee may not be refused expressly or by implication on the ground that the third parties sought to be joined reside or are domiciled in a Contracting State other than that of the court seised of the original proceedings .

22 The answer to the second and third questions must therefore be that Article 6(2 ) must be interpreted as meaning that it does not require the national court to accede to the request for leave to bring an action on a warranty or guarantee and that the national court may apply the procedural rules of its national law in order to determine whether that action is admissible, provided that the effectiveness of the Convention in that regard is not impaired and, in particular, that leave to bring the action on the warranty or guarantee is not refused on the ground that the third party resides or is domiciled in a Contracting State other than that of the court seised of the original proceedings .

Costs

23 The costs incurred by the Government of the Federal Republic of Germany, the Government of the French Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( First Chamber ),

in answer to the questions referred to it by the Hoge Raad der Nederlanden, hereby rules :

( 1 ) Where a defendant domiciled in a Contracting State is sued in a court of another Contracting State pursuant to Article 5(1 ) of the Brussels Convention, that court also has jurisdiction by virtue of Article 6(2 ) of the Brussels Convention to entertain an action on a warranty or guarantee brought against a person domiciled in a Contracting State other than that of the court seised of the original proceedings .

( 2 ) Article 6(2 ) must be interpreted as meaning that it does not require the national court to accede to the request for leave to bring an action on a warranty or guarantee and that the national court may apply the procedural rules of its national law in order to determine whether that action is admissible, provided that the effectiveness of the Convention in that regard is not impaired and, in particular, that leave to bring the action on the warranty or guarantee is not refused on the ground that the third party resides or is domiciled in a Contracting State other than that of the court seised of the original proceedings.