#5056 - Freeport - Conflict of Laws BCL

Freeport (2007)

Facts

A company with which Mr Arnoldsson worked has, since 1996, carried out, 'factory shop' retail centre development projects in various places in Europe. Freeport acquired a number of those projects from that company, in particular the most advanced of them, in Kungsbacka (Sweden).

At a meeting on 11 August 1999 between Mr Arnoldsson and the managing director of Freeport, an oral agreement was concluded between them that the former would personally receive a GBP 500 000 success fee when the Kungsbacka factory shop opened.

Inaugurated on 15 November 2001, the Kungsbacka factory shop is owned by a company incorporated under Swedish law, Freeport Leisure (Sweden) AB ('Freeport AB'), which manages it. The company is held by one of Freeport's subsidiaries, of which Freeport AB is a wholly owned subsidiary.

Mr Arnoldsson has asked both Freeport AB and Freeport to pay the fee on which he agreed with Freeport. Freeport AB refused the request on the ground that it is not a party to the agreement and that, furthermore, it did not exist when the agreement was concluded.

Since he had still not received payment, on 5 February 2003 Mr Arnoldsson brought an action before the Göteborgs tingsrätt (Göteborg District Court) seeking an order against both companies jointly to pay him the sum of GBP 500 000 or its equivalent in Swedish currency, together with interest.

The action against Freeport had a contractual basis, whereas the action against Freeport AB was based in tort, delict or quasi-delict, since there was no contractual relationship between Mr Arnoldsson and that company.

Question

Whether Article 6(1) of that regulation applies where actions brought against a number of defendants before the courts for the place where any one of them is domiciled have different legal bases.

Holding

It is not apparent from the wording of Article 6(1) of Regulation No 44/2001 that the conditions laid down for application of that provision include a requirement that the actions brought against different defendants should have identical legal bases.

As the Court has already held, for Article 6(1) of the Brussels Convention to apply, it must be ascertained whether, between various claims brought by the same plaintiff against different defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (Kalfelis, paragraph 13).

The Court has had occasion to point out that, in order that decisions may be regarded as contradictory, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of law and fact (Case C-539/03 Roche Nederland and Others [2006] ECR I6535, paragraph 26).

It is for the national court to assess whether there is a connection between the different claims brought before it, that is to say, a risk of irreconcilable judgments if those claims were determined separately and, in that regard, to take account of all the necessary factors in the case-file, which may, if appropriate yet without its being necessary for the assessment, lead it to take into consideration the legal bases of the actions brought before that court.

Distinguishing Reunion Europenne

Secondly, that judgment, unlike the present case, concerned overlapping special jurisdiction based on Article 5(3) of the Brussels Convention to hear an action in...