CJEU, 7th chamber, March 8, 2018, No C-64/17

THE COURT (Seventh Chamber),

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 4(1), Article 7(1) and Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

2 The request has been made in proceedings between Saey Home & Garden NV/SA, established in Belgium and Lusavouga-Máquinas e Acessórios Industraís SA ('Lusavouga'), established in Portugal, concerning a claim for compensation arising from the termination of a commercial concession agreement concluded between those two companies concerning the Spanish market.

Legal context

3 Article 4(1) of Regulation No 1215/2012 provides:

'Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.'

4 Article 7 of that regulation provides:

'A person domiciled in a Member State may be sued in another Member State:

(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

- in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

- in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

(c) if point (b) does not apply then point (a) applies;

...

(5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated;

...'

5 Under Article 25, in Section 7, entitled 'Prorogation of jurisdiction', in Chapter II of that regulation:

'1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member 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 jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either:

(a) in writing or evidenced in writing;

(b) in a form which accords with practices which the parties have established between themselves, or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

...'

The dispute in the main proceedings and the questions referred for a preliminary ruling

6 It is clear from the documents submitted to the Court that Lusavouga has its registered office in Cacia, Aveiro (Portugal) and that its premises are in Portugal. Its business consists in import, export and wholesale disribution of machines, tools and other equipment. Its commercial network covers Spain, inter alia, where it has no branch or establishment.

7 Saey Home & Garden is a company with its registered office in Courtai (Belgium), which specialises in the manufacture and sale, inter alia, of kitchen equipment and utensils bearing the trademark 'Barbecook'. That company also does not have a branch or establishment in Spain.

8 At the end of 2013 or the beginning of 2014, the parties to the main proceedings concluded a commercial concession agreement concerning the exclusive promotion and distribution (with the exception of one client) in Spain to retailers and final consumers of goods manufactured under the trade mark cited above.

9 Although no document evidencing the conclusion of that agreement was drafted, the referring court considers that the existence of that agreement has been established. Under that contract, from January to July 2014, Lusavouga ordered those goods from Saey Home & Garden and sold them in Spain.

10 By letter of 17 July 2014, Saey Home & Garden informed Lusavouga that it had decided to terminate their arrangment.

11 On 19 June 2015, Lusavouga brought an action against Saey Home & Garden before the Tribunal de Comarca de Aveiro (District Court, Aveiro, Portugal) seeking an order for the latter to pay it EUR 24 000 corresponding, first, to EUR 10 000 for compensation resulting from the actions of Saey Home & Garden and the premature and unexpected termination of the commercial concession agreement and, second, EUR 14 000 in respect of goodwill indemnity.

12 Saey Home & Garden raised a plea of lack of jurisdiction of the Portuguese courts to hear the dispute in the main proceedings, arguing, first, that the goods concerned were loaded in Belgium and that Lusavouga was responsible for the transport and, second, that paragraph 20 of the general terms and conditions to which the sale of those goods were subject contained a jurisdiction clause providing that disputes would be decided by the courts of Kortrijk (Courtai, Belgium).

13 The Tribunal de Comarca de Aveiro (District Court, Aveiro) dismissed the plea of lack of jurisdiction and held that the Portuguese courts had international jurisdiction on the basis of Article 7(1)(a) of Regulation No 1215/2012.

14 Saey Home & Garden brought an appeal against that decision before the referring court, the Tribunal da Relação do Porto (Court of Appeal, Porto, Portugal) arguing, in particular, that the commercial concession agreement at issue in the main proceedings requires the supply of services in Spain, so that that Member State is the place of performance of the contractual obligations. Furthermore, Saey Home & Garden argues that the wrongful termination of a contract is covered by 'matters relating to contract' within the meaning of Article 7(1)(a) of Regulation No 1215/2012, which excludes the jurisdiction of the Portuguese courts.

15 The referring court states that the question to be decided is whether the Portuguese, Belgian or Spanish courts have international jurisdiction to hear the dispute at issue in the main proceedings. Furthermore, if the Portuguese courts lack jurisdiction to hear the case in the main proceedings, that court considers that it must determine whether the Belgian or Spanish courts have jurisdiction to hear that dispute.

16 Taking the view that the resolution of the case in the main proceedings depends on the interpretation of the provisions of Regulation No 1215/2012, the national court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'(1) Must the action be brought before the Belgian courts, in accordance with the basic rule set out in Article 4(1) of Regulation No 1215/2012, because Belgium is the Member State in which the defendant has its seat and is in fact domiciled?

(2) Must the action be brought before the Portuguese courts, in accordance with Article 7(1)(a) and (c) of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a commercial concession agreement and Portugal is the Member State where the mutual obligations under the agreement should have been performed?

(3) Must the action be brought before the Spanish courts, in accordance with Article 7(1)(a) and (c) of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a commercial concession agreement and Spain is the Member State where the mutual obligations under the agreement should have been performed?

(4) Must the action be brought before the Portuguese courts, in accordance with Article 7(1)(a) and (b), first indent, of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a framework commercial concession agreement which, as between the applicant and the defendant, can be broken down into various contracts of sale and all the goods sold were due to be delivered in Portugal, and were actually delivered there on 21 January 2014?

(5) Must the action be brought before the Belgian courts, in accordance with Article 7(1)(a) and (b), first indent, of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a framework commercial concession agreement which, as between the applicant and the defendant, can be broken down into various contracts of sale and all the goods sold were delivered by the defendant to the applicant in Belgium?

(6) Must the action be brought before the Spanish courts, in accordance with Article 7(1)(a) and (b), first indent, of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a framework commercial concession agreement which, as between the applicant and the defendant, can be broken down into various contracts of sale and all the goods sold were intended to be delivered to Spain, pursuant to transactions carried out in that Member State?

(7) Must the action be brought before the Portuguese courts, in accordance with Article 7(1)(a) and (b), second indent, of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a framework commercial concession agreement which, as between the applicant and the defendant, took the form of a supply of services by the applicant to the defendant, with the former promoting business that was indirectly in the latter's interests?

(8) Must the action be brought before the Spanish courts, in accordance with Article 7(1)(a) and (b), second indent, of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a framework commercial concession agreement which, as between the applicant and the defendant took the form of a supply of services by the applicant to the defendant, with the former promoting business that was indirectly in the latter's interests through activity carried out in Spain?

(9) Must the action be brought before the Portuguese courts, in accordance with Article 7(5) of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a commercial concession agreement and the dispute between the applicant and the defendant is comparable to a dispute between a principal (or "grantor" of the concession) and an agent in Portugal?

(10) Must the action be brought before the Spanish courts, in accordance with Article 7(5) of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), because it relates to a commercial concession agreement and the dispute between the applicant and the defendant is comparable to a dispute between a principal (or "grantor" of the concession) and an agent deemed to be situated in Spain because the contractual obligations are to be performed there?

(11) Must the action be brought before the Belgian courts, specifically before a court in Kortrijk, in accordance with Article 25(1) of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), since under point 20 of the general conditions applicable to all the sales made by the defendant to the applicant the parties entered into an agreement conferring jurisdiction, which was in writing and fully valid under Belgian law, according to which "any dispute of any nature whatsoever shall be the exclusive jurisdiction of the courts of Kortrijk"?

(12) Under the provisions of Sections 2 to 7 of Chapter II of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), must the action be brought before the Portuguese courts because the main connecting factors of the contractual relationship between the applicant and the defendant are with the territory and legal system of Portugal?

(13) Under the provisions of Sections 2 to 7 of Chapter II of Regulation No 1215/2012 (by virtue of Article 5(1) of the same regulation), must the action be brought before the Spanish courts because the main connecting factors of the contractual relationship between the applicant and the defendant are with the territory and legal system of Spain?'

Consideration of the questions referred

Admissibility

17 In their written submissions, the Portuguese Government and the European Commission express doubts as to the admissibility of the present request for a preliminary ruling on the ground, in particular, that it has certain shortcomings, such as, inter alia, a description of the facts of the dispute in the main proceedings which is difficult to understand, the failure of the referring court to comment on the findings on which the decision to make this request is based and the repetition of some of the questions referred.

18 In that regard, it should be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court, are not satisfied or where it is quite obvious that the interpretation of a provision of European Union law, or the assessment of its validity, which is sought by the national court bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical (see, to that effect, judgment of 28 March 2017, Rosneft, C-72/15, EU:C:2017:236, paragraphs 50 and 155 and the case-law cited).

19 According to settled case-law, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 14 June 2017, Online Games and Others, C-685/15, EU:C:2017:452, paragraph 43 and the case-law cited).

20 In the present case, the interpretation requested of certain provisions of Regulation No 1215/2012 has a genuine and direct link with the subject matter of the dispute in the main proceedings, which is sufficiently detailed, and the answer that the Court may provide to the questions referred will enable the referring court to dispel its doubts and resolve the dispute.

21 It follows that the request for a preliminary ruling must be declared admissible.

Substance

22 The jurisdiction of a court or courts of a Member State, agreed by the parties to a contract in a jurisdiction clause is, in principle, according to Article 25(1) of Regulation No 1215/2012, exclusive. Therefore, Question 11 concerning whether jurisdiction arises by virtue of such a clause, must be examined first.

Question 11

23 By that question, the referring court asks, essentially, whether Article 25(1) of Regulation No 1215/2012 must be interpreted as meaning that a jurisdiction clause set out in the general terms and conditions of sale, which are mentioned in invoices issued by one of the contracting parties, satisfies the requirements of that provision.

24 The Court has consistently held in this regard that the provisions of Article 25 of Regulation No 1215/2012 must be strictly interpreted in so far as they exclude both jurisdiction as determined by the general principle of the defendant's courts laid down in Article 4 thereof and the special jurisdictions provided for in Articles 7 to 9 thereof (see, to that effect, judgment of 28 June 2017, Leventis and Vafeias, C-436/16, EU:C:2017:497, paragraph 39 and the case-law cited).

25 More specifically, the court before which the matter is brought has the duty of examining, in limine litis, whether the jurisdiction clause was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, the purpose of the requirements as to form imposed by Article 25(1) of Regulation No 1215/2012 being, in that regard, to ensure that consensus between the parties is in fact established (see, to that effect, judgment of 28 June 2017, Leventis and Vafeias, C-436/16, EU:C:2017:497, paragraph 34 and the case-law cited).

26 Article 25(1)(a) of Regulation No 1215/2012 provides that the jurisdiction clause may be concluded in writing or evidenced in writing.

27 Moreover, it must be observed that where a jurisdiction clause is stipulated in the general conditions, the Court has already held that such a clause is lawful where the text of the contract signed by both parties itself contains an express reference to general conditions which include a jurisdiction clause (judgment of 7 July 2016, Hoszig, C-222/15, EU:C:2016:525, paragraph 39 and the case-law cited).

28 In the present case, it is clear from the documents before the Court that the commercial concession agreement at issue in the main proceedings was concluded verbally and was not evidenced in writing, and the general terms containing the jurisdiction clause concerned were mentioned only in the invoices issued by the defendant in the main proceedings.

29 In the light of those factors, and having regard to the case-law set out in paragraph 27 of the present judgment, a jurisdiction clause, such as that at issue in the main proceedings, does not satisfy the requirements of Article 25(1)(a) of Regulation No 1215/2012 which is, however, for the national court to ascertain.

30 Furthermore, it is common ground, according to the referring court, that the subject matter of the dispute at issue in the main proceedings concerns a commercial concession agreement for which compensation is sought for loss arising from the premature and sudden termination together with a good will indemnity for failing to observe the related requirement of semi-exclusivity. Therefore, it is important to verify, which is also a matter for the referring court, whether the jurisdiction clause at issue in the main proceedings concerns that legal relationship. In principle, a jurisdiction clause may produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (judgment of 7 February 2013, Refcomp, C-543/10, EU:C:2013:62, paragraph 29).

31 It should be added that, apart from the two options provided for in Article 25(1)(a) of Regulation No 1215/2012, Article 25(1)(b) and (c) provides that a jurisdiction clause may also be concluded in a form which accords with practices which the parties have established between themselves, or in a form which accords with a usage of which the parties are or ought to have been aware. It is for the referring court, where necessary, to determine whether a jurisdiction clause has been concluded between the parties in the main proceedings in one of those forms.

32 It follows that Article 25(1) of Regulation No 1215/2012 must be interpreted as meaning that, subject to the verifications to be made by the referring court, a jurisdiction clause, such as that at issue in the main proceedings, set out in the general conditions of sale mentioned in invoices issued by one of the contracting parties does not satisfy the requirements of that provision.

Questions 2 to 8

33 By those questions, which must be dealt with together, the referring court asks essentially about the interpretation to be given to Article 7(1) of Regulation No 1215/2012 in order to determine which court has jurisdiction to hear an application for damages relating to the termination of a commercial concession agreement concluded between two companies each established and operating in a different Member State, for the marketing of goods on the domestic market of a third Member State in which neither of those companies has a branch or establishment.

34 First of all, it should be pointed out that the connecting factors for determining the court with jurisdiction that are laid down in Article 7(1)(b) of Regulation No 1215/2012 are applicable only in so far as the national court hearing the dispute which has arisen between the parties that entered into a long-standing business relationship with each other comes to the conclusion that that relationship is founded on a 'contract for the sale of goods' or a 'contract for the provision of services', for the purposes of that provision. Such a classification would exclude the application of the rule of jurisdiction laid down in Article 7(1)(a) thereof. In view of the hierarchy which Article 5(1)(c) establishes between Article 5(1)(a) and (b), the rule of jurisdiction laid down in Article 5(1)(a) is intended to apply only in the alternative and if the rules of jurisdiction in Article 5(1)(b) do not apply (see, to that effect, judgment of 14 July 2016, Granarolo, C-196/15, EU:C:2016:559, paragraphs 30 and 31 and the case-law cited).

35 In the first place, Article 7(1)(b), first and second indents, of Regulation No 1215/2015 must be interpreted in order to determine whether a commercial concession agreement, such as that at issue in the main proceedings, constitutes a contract for the 'sale of goods' or the 'provision of services' within the meaning of that provision.

36 For that purpose, it is necessary to take the obligation which characterises the contract as the connecting factor for determining the competent court (see, to that effect, judgments of 25 February 2010, Car Trim, C-381/08, EU:C:2010:90, paragraphs 31 and 32, and of 15 June 2017, Kareda, C-249/16, EU:C:2017:472, paragraph 40 and the case-law cited).

37 Thus, a contract which has as its characteristic obligation the supply of a good will be classified as a 'sale of goods' within the meaning of the first indent of Article 7(1)(b), first indent, of Regulation No 1215/2012, (see, to that effect, judgment of 14 July 2016, Granarolo, C-196/15, EU:C:2016:559, paragraph 34 and the case-law cited).

38 As to whether a contract may be classified as a 'contract for the supply of services', within the meaning of Article 7(1)(b), second indent, of Regulation No 1215/2012, it must be recalled that the concept of 'services' implies, at the least, that the party who provides the service carries out a particular activity in return for remuneration (see, to that effect, judgment of 15 June 2017, Kareda, C-249/16, EU:C:2017:472, paragraph 35 and the case-law cited).

39 As regards the criterion relating to the existence of an activity, it is clear from the case-law of the Court that it requires the performance of positive acts, rather than mere omissions. That criterion corresponds, in the case of a concession agreement, to the characteristic service provided by the concessionaire which, by distributing the products of the grantor of the concession, is involved in increasing their distribution. As a result of the supply guarantee it enjoys under the concession agreement and, as the case may be, its involvement in the grantor's commercial planning, in particular with respect to marketing operations, factors in respect of which the national court has jurisdiction to make a ruling, the concessionaire is able to offer clients services and benefits that a mere reseller cannot and thereby acquire, for the benefit of the grantor's products, a larger share of the local market (see, to that effect, judgment of 19 December 2013, Corman-Collins, C-9/12, EU:C:2013:860, paragraph 38 and the case-law cited).

40 As to the criterion of the remuneration provided as consideration for an activity, it must be pointed out that it cannot be understood in the strict sense of the payment of a sum of money. Account must be taken, first, of the competitive advantage conferred on the concessionaire by the benefit, by virtue of the contract concluded between the parties, of an exclusive or semi-exclusive right to sell the grantor's products in a particular territory and, second, assistance provided to the concessionaire regarding access to advertising, communicating know-how by means of training or yet even payment facilities, all of which represent an economic value for the concessionaire that may be regarded as constituting remuneration (see, to that effect, judgment of 19 December 2013, Corman-Collins, C-9/12, EU:C:2013:860, paragraphs 39 and 40).

41 The Court has already held that, for the purposes of determining jurisdiction, an exclusive or semi-exclusive concession agreement falls, in principle, with the definition of 'contract for the supply of services' (see, to that effect, judgment of 19 December 2013, Corman-Collins, C-9/12, EU:C:2013:860, paragraphs 27, 28 and 41).

42 Second, subject to verification by the referring court that the commercial concession agreement at issue in the main proceedings may in fact be classified as a 'contract for the supply of services', the place of performance of the obligation which characterises such a contract and the court with jurisdiction to hear disputes related to it must be determined.

43 In that connection, as is clear from the documents before the Court, the commercial concession agreement at issue in the main proceedings is an exclusive distribution agreement (with the exception of one client) granted by agreement between a company established in Belgium and another company established in Portugal, for the distribution of goods on the Spanish market, although neither of those companies has a branch or establishment in Spain.

44 It follows from the case-law of the Court that, when there are several places of performance of the obligation characteristic of a contract for the supply of services the 'place of performance' within the meaning of Article 7(1)(b), second indent, of Regulation No 1215/2012 must be understood as the place with the closest linking factor, which, as a general rule, will be at the place of the main provision of services (see, to that effect, judgment of 11 March 2010, Wood Floor Solutions Andreas Domberger, C-19/09, EU:C:2010:137, paragraphs 33 and 34).

45 Therefore, under that provision, the court with jurisdiction to hear claims based on a contract for the supply of services in the case of the supply of services in several Member States is the court of the Member State of the place of the main provision of services, as it follows from the provisions of the contract and, in the absence of such provision, of the actual performance of that contract and, where it cannot be determined on that basis, the place where the agent is domiciled (see, to that effect, judgment of 11 March 2010, Wood Floor Solutions Andreas Domberger, C-19/09, EU:C:2010:137, paragraph 43).

46 That interpretation, which must also apply in circumstances such as those at issue in the main proceedings, which respects the objectives of predictability and proximity pursued by the EU legislature (see, to that effect, judgments of 25 February 2010, Car Trim, C-381/08, EU:C:2010:90, paragraph 48 and the case-law cited, and of 11 March 2010, Wood Floor Solutions Andreas Domberger, C-19/09, EU:C:2010:137, paragraphs 41 and 42).

47 Having regard to all of the foregoing considerations, the answer to Questions 2 to 8 is that Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that the court with jurisdiction, by virtue of that provision, to hear a claim for compensation relating to the termination of a commercial concession agreement concluded between two companies established and operating in two different Member States for the distribution of goods on the domestic market of a third Member State in which neither of those companies has a branch or establishment, is that of the Member State in which the place of the main supply of services, as is clear from the provisions of the contract and, in the absence of such provisions, the actual performance of that contract, and where it cannot be determined on that basis, the place where the agent is domiciled.

The other questions

48 Having regard to the answers given to Questions 2 to 8 and Question 11, there is no need to give a ruling on Questions 1, 9, 10, 12 and 13.

Costs

49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

1. Article 25(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, subject to the verifications to be made by the referring court, a jurisdiction clause, such as that at issue in the main proceedings, set out in the general conditions of sale mentioned in invoices issued by one of the contracting parties does not satisfy the requirements of that provision.

2. Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that the court with jurisdiction, by virtue of that provision, to hear a claim for compensation relating to the termination of a commercial concession agreement concluded between two companies established and operating in two different Member States for the distribution of goods on the domestic market of a third Member State in which neither of those companies has a branch or establishment, is that of the Member State in which the place of the main supply of services, as is clear from the provisions of the contract and, in the absence of such provisions, the actual performance of that contract, and where it cannot be determined on that basis, the place where the agent is domiciled.