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Is the international (foreign) element required at the outset, at the time of conclusion of the contract, in order to trigger the applicability of the rules on jurisdiction of the Lugano II Convention on jurisdiction over consumer contracts and to protect the consumer from being sued outside of the State of his (her) domicile?

This is the question that the Court of Justice addresses in its judgments delivered this Thursday in the case Commerzbank, C-296/20.

Factual background

A consumer domiciled in Germany concludes a contract, through a branch in the same State, with a company whose head office is also situated in the said State.

Fast-forward a few years, the consumer relocates to Switzerland. Few months later, the professional brings an action against the consumer before a German court.

The first instance court declares the action inadmissible on the ground that it lacks jurisdiction. The appeal brought by the professional before the second instance court is unsuccessful. Ultimately, the case is brought before the Bundesgerichtshof, which refers the case to the Court of Justice.

 

Outline of the preliminary questions…

In its request for a preliminary ruling, the Bundesgerichtshof acknowledges that the sole possible basis for the international jurisdiction of the German courts lies within Article 5(1) of the Lugano II Convention (jurisdiction in matters relating to contract: place of performance of the contractual obligation; supposedly in Germany). In fact, the consumer was domiciled in Switzerland at the time when proceedings were brought and thus the German courts have no international jurisdiction either under Article 2(1) of the Convention (domicile of the defendant) or under its Article 16(2) (jurisdiction for the proceedings brought against a consumer: domicile of the defendant).

However, in the light of Articles 15(1)(c) and 16(2) of the Lugano II Convention, the consumer can be sued before the courts of the State in which he or she is domiciled, if – as the former provision puts it – “the contract has been concluded with a person who pursues commercial or professional activities in the State bound by this Convention of the consumer’s domicile or, by any means, directs such activities to that State or to several States including that State, and the contract falls within the scope of such activities”.

It may seem that, for the Bundesgerichtshof, Article 15(1)(c) presupposes that the other party to the contract is a person who pursues commercial or professional activities abroad, in the State bound by the Convention of the consumer’s domicile or, by any means, directs such activities to that State and the contract comes within the scope of such activities.

Thus, a doubt arises: a contract concluded in a purely national situation, with no international (foreign) element present, is capable of falling within the scope of Article 15(1)(c) of the Lugano II Convention due to the subsequent relocation of one of the parties to the contract to a different State?

In substance, this is the legal issue that lies at the heart of the preliminary questions referred to the Court.

The first preliminary question boils down to the following point: does Article 15(1)(c) of the Lugano II Convention apply also in the situation where the parties were domiciled in the same State bound by the Convention at the time when the contract was concluded and a foreign element to the legal relationship arose only subsequently because the consumer relocated at a later date to another State bound by the Convention.

In the affirmative, by its second question, the Bundesgerichtshof asks whether it also necessary for the activities of the professional to be pursued in or directed to the new State of domicile of the consumer and for the contract to come within the scope of such activities.

 

… and of the Court’s answer

Earlier this month, AG Campos Sánchez-Bordona delivered his Opinion in the case at hand. Geert Van Calster provided a comprehensive summary of its findings and I am happy to refer to his contribution. For some further interesting remarks see also the editors’ post at the EAPIL blog.

As for the judgment itself, the reasoning of the Court is straightforward: referring to the order in mBANK on the Brussels I bis Regulation, the Court hold that also under the Lugano II Convention the concept of “consumer’s domicile” must be interpreted as designating the consumer’s domicile at the date on which the court action is brought (paragraph 36).

The Court observes then, in particular, that Article 15(1)(c) of the Lugano II Convention does not require, neither explicitly nor implicitly, for the activities of the professional to be directed to a State other than the State in which the professional is established (paragraph 42).

Concerning the predictability of the forum for the professional, the Cour observes that actor sequitur forum rei is a principle central for the Convention itself, pursuant to its Article 2(1) (paragraph 54).

In the light of the above, the Court provides an answer according to which a contract falls within the scope of Article 15(1)(c) of the Lugano II Convention also in the event of a  subsequent appearance of the international (foreign) element, due to the relocation of the consumer’s domicile.

The judgment is available here (in French and German, no English version at the time of posting).

Cour des comptes / Pinxten
Droit institutionnel
La Cour juge qu’un ancien membre de la Cour des comptes européenne a enfreint les obligations découlant de sa charge auprès de cette institution. Il est déchu de deux tiers de son droit à pension

TGSS (Chômage des employés de maison)
SOPO
Employés de maison en Espagne : selon l’avocat général Szpunar, la législation qui les exclut des prestations de chômage alors que ces employés sont presque exclusivement des femmes est contraire au droit de l’Union

Commissaire général aux réfugiés et aux apatrides
Espace de liberté, sécurité et justice
Selon l’avocat général Pikamäe, le droit de l’Union s’oppose à ce qu’un État membre déclare automatiquement irrecevable une demande de protection internationale lorsque son auteur bénéficie déjà du statut de réfugié octroyé dans un autre État membre

Etranger - Garde à vue

Entreprise en difficulté

Procédure civile

CHEP Equipment Pooling BV v ITS Ltd & Ors [2021] EWHC 2485 (Comm) concerns in the main when a claim between two parties who are in a relation of employment, ‘relates to’ that employment contract. (In the case concerned, leading to lack of jurisdiction against one of the defendants).

At issue is whether 3 former senior employees had essentially defrauded claimant by negotiating on its behalf, price-inflated audit and supply agreements with corporations which those employees (in)directly owned and /or controlled. Causes of action are breach of fiduciary duty; dishonest assistance of the breaches of fiduciary duty by the other former employees; and unlawful means conspiracy.

Whether any of these claims engage A22 jurisdiction needs to be assessed viz each claim separately: [44]: Cuneo Resources NV and others v Daskalakis and others [2019] EWHC 87 (Comm).  Among others Bosworth was discussed in the subsequent analysis. After reviewing ia the employment history of defendant with the claimant, and the bond between the alleged dishonesty and the employment contract,  Jacobs J concludes [107]

the claims relate to Mr de Laender’s contract of employment, and also …the connection between Mr de Laender’s contract and the conduct relied upon is material. It cannot be described as tenuous, or a small part of the picture, or simply part of the history. I also consider that the legal basis of the claims can reasonably be regarded as a breach of his contract, so that it is indispensable to consider the contract in order to resolve the matters in dispute.

Obiter the judge reviews locus delicti commissi and locus damni under A7(2). For Handlungsort, Jacobs J holds that the claimant has the better of the argument that that is located in England: particularly seeing as the main alleged conspirator was domiciled in England at the time the various strands of the action materialised. For locus damni – Erfolgort, the conclusion [133] is one of Mozaik per Shevill, particularly in view of a corporate reorganisation (incl a move to England) which occurred midway through the conspiracy.

Geert.

CHEP Equipment Pooling BV v ITS [2021] EWHC 2485 (Comm)
Jurisdiction challenge succeeds on basis of A22 Brussels Ia's employment section
Whether claim 'relates to' contract of employment
E&W obiter held to be locus delicti commissi and locus damni, A7(2)https://t.co/nccwSBrOQE

— Geert Van Calster (@GAVClaw) September 10, 2021

Front Polisario / Conseil
Relations extérieures
Le Tribunal annule les décisions du Conseil relatives, d’une part, à l’accord entre l’UE et le Maroc modifiant les préférences tarifaires accordées par l’UE aux produits d’origine marocaine ainsi que, d’autre part, à leur accord de partenariat dans le domaine de la pêche durable