#5143 - Gav - Conflict of Laws BCL

GAV

Facts

That reference was made in the context of proceedings involving four German insurance companies, namely Gothaer Allgemeine Versicherung AG, ERGO Versicherung AG, Versicherungskammer Bayern-Versicherungsanstalt des öffentlichen Rechts and Nürnberger Allgemeine Versicherungs-AG (‘the insurers’), and also Krones AG (‘Krones’), a German company insured by them, against Samskip GmbH (‘Samskip’), a German subsidiary of the company Samskip Holding BV, a transport and logistics undertaking founded in Iceland and established in the Netherlands, concerning the delivery by Samskip of a brewing installation to a purchaser, Cerveceria Cuauthemoc Monezum (‘the recipient’), a Mexican undertaking.

The dispute involves an action for compensation brought before the German courts by the insurers and Krones concerning damage allegedly caused to that installation during transport. The Belgian courts, including the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), had dismissed as inadmissible similar actions brought before them on the ground that the bill of lading, drawn up on 13 August 2006, the date on which Samskip took delivery of the installation in Antwerp (Belgium), contained a contractual clause (‘jurisdiction clause’) stating that any dispute arising thereunder was to be decided by Icelandic courts according to Icelandic law.

The recipient and the insurers brought the matter before the Belgian courts by an action lodged on 30 August 2007 and requested that Samskip appear before the Rechtbank van koophandel te Antwerpen (Antwerp Commercial Court) on 16 October 2007. That court ruled in favour of the insurers and the recipient, but the Hof van beroep te Antwerpen revised that judgment by its judgment of 5 October 2009, by which it declared itself ‘to have no authority to hear and decide the case’.

In its reasons for judgment, the Hof van beroep te Antwerpen held that the recipient was not entitled to bring proceedings on the basis of the contract of carriage. The insurers did have the right to institute proceedings as successors in title to Krones, but they were bound by the jurisdiction clause contained in the bill of lading. Under point 2 of the clauses therein, the Icelandic courts have exclusive jurisdiction, and for that reason the Belgian courts have no authority to hear and decide the case. That judgment has become final.

The Landgericht Bremen observes that, in Samskip’s submission, the actions are inadmissible inasmuch as the judgment of the Hof van beroep te Antwerpen of 5 October 2009 produces legal effects not only as regards the Belgian courts’ lack of jurisdiction but also as regards the finding that jurisdiction lies with the Icelandic courts, as stated in the grounds of that judgment. Samskip states that that judgment has binding effect on the referring court in accordance with Articles 32 and 33 of Regulation No 44/2001.

Questions

Are Articles 32 and 33 of Regulation No 44/2001 to be interpreted as meaning that the term “judgment” also covers in principle those judgments which are restricted to the finding that the procedural requirements for admissibility are not satisfied (so-called “procedural judgments”)?

Are Articles 32 and 33 of Regulation No 44/2001 to be interpreted as meaning that the term “judgment” also covers a judgment ending proceedings by which a court declines international jurisdiction on the basis of a jurisdiction clause?

Having regard to the case-law of the Court of Justice on the principle of extended effect (Case 145/86 Hoffmann [1988] ECR 645), are Articles 32 and 33 of Regulation No 44/2001 to be interpreted as meaning that each Member State is required to recognise the judgments of a court of another Member State on the effectiveness of a jurisdiction clause agreed on by the parties, where the finding as to the effectiveness of the jurisdiction clause has become final under the national law of that court – even where the decision on the point forms part of a procedural judgment dismissing the action?’

Holding

A procedural Order – entitled to recognition

By its first and second questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 32 of Regulation No 44/2001 must be interpreted as meaning that it also covers a judgment by which a court of a Member State declines jurisdiction on the basis of a jurisdiction clause, even though that judgment is classified as a ‘procedural judgment’ by the law of another Member State.

It should be noted at the outset that, in accordance with the wording of Article 32 of Regulation No 44/2001, the concept of ‘judgment’ covers ‘any’ judgment given by a court of a Member State, without any distinction being drawn according to the content of the judgment in question, which means that, in principle, that concept also comprises a judgment by which a court of a Member State declines jurisdiction on the basis of a jurisdiction clause.

The Court has held that Article 25 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), the Court’s interpretation of which also holds true, in principle, for the corresponding provision of Regulation No 44/2001 (see, to that effect, Case C 406/09Realchemie Nederland [2011] ECR I 0000, paragraph 38), namely Article 32 of that regulation, is not limited to decisions which terminate a dispute in whole or in part, but also applies to provisional or interlocutory decisions (Case C 39/02 Mærsk Olie & Gas [2004] ECR I 9657, paragraph 46).

That mutual trust would be undermined if a court of a Member State could refuse to recognise a judgment by which a court of another Member State declined jurisdiction on the basis of a jurisdiction clause. To allow a court of a Member State to refuse to recognise such a judgment would run counter to the system introduced by Regulation No 44/2001, because such a refusal would be liable to compromise the effective operation of the rules set out in Chapter II of that regulation on the distribution of jurisdiction as between the courts of the Member States.

In the light of all the considerations set out...