CJEC, 3rd chamber, July 14, 1983, No 201-82

The court (third chamber)

1 By order of 28 july 1982, received at the court registry on 6 august 1982, the corte suprema di cassazione, sezioni unite civili (supreme court of cassation, combined civil sections) 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 ' '), referred to the court for a preliminary ruling two questions on the interpretation of articles 17 and 18 of the convention.

2 Those questions arose in proceedings between the Amministrazione del Tesoro dello Stato (treasury administration) and Gerling Konzern Speziale Kreditversicherungs-AG and others (hereinafter referred to as ' ' gerling ' '), whose registered office is in cologne, in which the plaintiff sought to recover a sum representing pecuniary penalties, taxes, duties and supplementary charges in connection with a series of transport operations under the tir system, which it subsequently appeared were illegal under italian law and as such became liable for the above-mentioned charges and taxes.

3 To enjoy the facilities provided for by the customs convention on the international transport of goods under cover of tir carnets adopted in geneva on 15 january 1959, transport must in particular be effected under a tir carnet issued by the authorized association in each country signatory to the customs convention and the carriage takes place under its guarantee. The national association which gives the guarantee is liable for payment of the duties and taxes held to be payable and for penalties incurred by the holder of the tir carnet.

4 The authorized national association in italy at the material time was the ente autotrasporti merci. Since it has been wound up its rights have been vested in the italian ministry of the treasury pursuant to the combined provisions of law no 1404 of 4 december 1956, law no 413 of 18 march 1968 and law no 1139 of 23 december 1970.

5 The national associations are affiliated to the international road transport union. Each of those national associations enjoys in turn insurance cover from an international group of insurers represented by gerling pursuant to a contract made in 1961 by the international road transport union on its own behalf and on behalf of each of the national associations on the one hand and by the aforesaid international group of insurers on the other.

6 Article 8 of the contract of insurance provides: ' ' in case of a dispute between the pool and one of the national associations the latter shall be entitled to insist on proceedings before the court having jurisdiction in the country in which it has its registered office, for the application of the law of that country. ' '

7 Since the italian customs administration claimed payment of a series of penalties, charges and duties connected with road transport under the tir system in italy the ministry of the treasury brought an action before the tribunale di roma (district court, rome) against the aforesaid group of insurers claiming payment of a total sum of lit 812 134 310.

8 During the proceedings the group of insurers brought an interlocutory action before a section of the corte di cassazione pursuant to article 41 of the italian code of civil procedure for a preliminary ruling on jurisdiction. The insurers deny that the aforesaid clause conferring jurisdiction may be relied upon inasmuch as it was not signed by the ente autotrasporti merci (or by the treasury administration) whereas article 17 of the convention required such a clause conferring jurisdiction to be in writing and signed by the parties.

9 It is against that background that the corte di cassazione has referred the following two questions to the court for a preliminary ruling:

' ' 1. Where a contract has been duly signed by the contracting parties and there has been included by one of those parties, on its own behalf and in the interests of other beneficiaries under the contract, the jurisdiction clause agreed upon therein with reference to proceedings which may be brought by the said beneficiaries, does the requirement as to written form laid down by article 17 of the brussels convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters also apply in favour of those beneficiaries?

2. Is the effect of confirming the jurisdiction of the court before which an action is brought - which comes about, under article 18 of the said convention, as a result of the entry of an appearance by the defendant - also produced when the defendant, in entering an appearance, besides lodging a preliminary objection to the court ' s jurisdiction, sets out, purely in the alternative, a defence on the substance of the case?

' '

1. First question

10 The corte di cassazione is asking the court basically to clarify whether the convention, and in particular article 17 thereof, may be interpreted as meaning that under a contract of insurance a person in whose favour the contract is made but who is not a party to the contract and is separate from the insured, is entitled to rely on a clause extending jurisdiction inserted for his benefit although he has not himself signed it, albeit the insurer and insured have duly done so.

11 In applying the convention it is necessary to interpret it by reference mainly to its structure and objectives in order to make it fully effective.

12 The first paragraph of article 17 of the convention provides:

' ' If the parties, one or more of whom is domiciled in a contracting state, have, by agreement in writing or by an oral agreement evidenced in writing, agreed that a court or the courts of a contracting state are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. ' '

13 As the court has repeatedly held in particular in its judgments of 14 december 1976 in case 24-76 estasis salotti (1976) ecr 1831 and case 25-76 segoura (1976) ecr 1851 and of 6 may 1980 in case 784-79, porta leasing (1980) ecr 1517, the purpose of the requirement of writing under article 17 of the convention is to ensure that the consent of the parties, who, by an agreement conferring jurisdiction, depart from the general rules for determining jurisdiction laid down in articles 2, 5 and 6 of the convention, is clearly and precisely demonstrated and is actually established.

14 Moreover, article 17 of the convention in requiring writing between the parties does not have either the object or the effect of subjecting a third party benefiting from the requirement imposed on others to the same requirement of writing where the clause conferring jurisdiction is made for his benefit and he seeks to rely on it in proceedings between him and the insurer.

15 In such circumstances it appears to the court that the insurer, if his original consent has been made clear in the provisions of the contract, cannot object to such an exclusion of jurisdiction on the sole ground that the party benefiting from the requirement imposed on others, not being a party to the contract, has not himself satisfied the requirement of writing prescribed by article 17 of the convention.

16 Consideration of the provisions of section 3 of the convention relating to jurisdiction in matters relating to insurance confirms that view.

17 It is apparent from a consideration of the provisions of that section in the light of the documents leading to their enactment that in affording the insured a wider range of jurisdiction than that available to the insurer and in excluding any possibility of a clause conferring jurisdiction for the benefit of the insurer their purpose was to protect the insured who is most frequently faced with a predetermined contract the clauses of which are no longer negotiable and who is in a weaker economic position.

18 Moreover, article 12 of the convention allows the parties to depart from the provisions of section 3 ' ' by an agreement... (2) which allows the policy-holder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this section ' '. It is thus clear that the convention has expressly provided for the possibility of stipulating clauses conferring jurisdiction not only in favour of the policy-holder, being a party to the contract, but also in favour of the insured and the beneficiary who may not be parties to the contract when, as in the present case, they are different persons whose identity may even be unknown when the contract is signed.

19 Consequently if the requirement as to form referred to in article 17 were to be regarded as requiring the insured or beneficiary, not being a party to the contract but a person for whose benefit the clause conferring jurisdiction is made, expressly to sign the said clause so as to validate it and to entitle him to rely on it, the effect of such an interpretation would be to place on the latter, in view of the fact that originally the insurer has unequivocally given his consent to an open and general system of extension of jurisdiction, a pointless restriction amounting even, it may be, to a formality with which it would be difficult to comply if, before any proceedings, the insured has not been informed by the policy-holder of the existence of a clause conferring jurisdiction which has been made for his benefit.

20 It follows from all the foregoing that the answer should be that where in a contract of insurance a clause conferring jurisdiction is inserted for the benefit of the insured who is not a party to the contract but a person distinct from the policy-holder, it must be regarded as valid within the meaning of article 17 of the convention provided that, as between the insurer and the policy-holder, the condition as to writing laid down therein has been satisfied and provided that the consent of the insurer in that respect has been clearly and precisely manifested.

2. Second question

21 As regards this question it is sufficient to recall that the court in its judgments of 24 june 1981 in case 150-80 elefanten schuh gmbh (1981) ecr 1671, of 22 october 1981 in case 27-81 rohr (1981) ecr 2431 and of 31 march 1982 in case 25-81 chw (1982) ecr 1189 has recognized that article 18 of the convention must be interpreted as meaning that it allows a defendant not merely to contest jurisdiction but at the same time to submit, in the alternative, a defence on the substance of the case without thereby losing the right to raise an objection of want of jurisdiction.

Costs

22 The costs incurred by the government of the italian republic and the commission of the european communities, who have submitted observations to the court, are not recoverable. Since the proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (third chamber)

In answer to the questions referred to it by the corte suprema di cassazione (sezioni unite civili), by order of 28 july 1982, hereby rules:

1. The first paragraph of article 17 of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that where a contract of insurance, entered into between an insurer and a policy-holder and stipulated by the latter to be for his benefit and to enure for the benefit of third parties to such a contract, contains a clause conferring jurisdiction relating to proceedings which might be brought by such third parties, the latter, even if they have not expressly signed the said clause, may rely upon it provided that, as between the insurer and the policy-holder, the condition as to writing laid down by article 17 of the convention has been satisfied and provided that the consent of the insurer in that respect has been clearly manifested.

2. Article 18 of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that it allows a defendant not merely to contest jurisdiction but at the same time to submit, in the alternative, a defence on the substance of the case without thereby losing the right to raise an objection of want of jurisdiction.