1. 

This case has been referred to the Court by the Vestre Landsret (Western Regional Court) pursuant to Article 3 of 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 ( 1 ) (hereinafter ‘the Convention’). In the questions referred for a preliminary ruling, that court asks the Court of Justice to rule for the first time to my knowledge on the interpretation to be given to Article 6(3) of the Convention. The national court essentially asks whether a setoff must be regarded as a ‘counterclaim’within the meaning of that provision and whether the requirement for there to be a sufficient connection set out therein is more restrictive than that appearing in the third paragraph of Article 22 of the Convention.

2. 

I shall briefly call to mind the context and content of those provisions before considering the facts which gave rise to the questions referred for a preliminary ruling.

3.

The Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the 1978 Accession Convention (Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland), the 1982 Accession Convention (Hellenic Republic) and the 1989 Accession Convention (Kingdom of Spain and Portuguese Republic), ( 2 ) was drawn up pursuant to Article 220 of the Treaty of Rome to secure the ‘simplification of formalities [as between Member States] governing the reciprocal recognition and enforcement of judgments of courts or tribunals ...’. Its essential purpose is to secure the free movement of judgments between the Contracting States. The simplified mechanism for the recognition and enforcement of judgments of courts and tribunals in the Member States (Title III) falling within the scope of the Convention (Title I) is based on a standardized system for determining jurisdiction (Title II).

4.

The jurisdiction rules set out in Title II enable it to be determined in which court proceedings may competently be brought. Various heads of jurisdiction are provided for in this way, but, under the ‘general provisions’(Section 1: Articles 2, 3 and 4), general jurisdiction is conferred in principle on the courts of the defendant's domicile (Article 2). Supplementing that conferral of jurisdiction in principle, and by way of option, Section 2 (Articles 5, 6 and 6a) lists various concurrent jurisdictions, known as ‘special jurisdictions’, conferred on the courts of a Contracting State other than the courts of the defendant's domicile on account of the strong connection between a particular court and a dispute having regard to the specific character of the subject-matter in question or the specific nature of certain procedural situations.

5.

Article 6 falls within the latter section. Consequently, it lists rules of special jurisdiction constituting an optional addition to the other ordinary jurisdiction rules in the following events: where there are a number of defendants (Article 6(1)), action on a warranty or a guarantee in pre-existing proceedings (Article 6(2)) and counterclaims (Article 6(3)).

6.

Article 6(3), which is the subject of this request for an interpretative ruling, reads as follows:

‘(A person domiciled in a Contracting State may be also be sued:)

...

7.

Consequently, that provision enables the defendant to enter a counterclaim against the plaintiff in the court seised of the original claim, irrespective as to the basis of that court's jurisdiction. In accordance with the aim of the Convention — that of determining a centralizing forum — Article 6(3) enables a proliferation of courts having jurisdiction to be avoided. But this head of special jurisdiction is made expressly conditional on the existence of a contractual or factual connection with the original claim.

8.

The difficulty here is that neither the concept of a ‘counterclaim’ nor that of the existence of a connection within the meaning of the provision is specified. Admittedly, the concept of a ‘counterclaim’also appears in the body of the Convention in the specific context of insurance (second paragraph of Article 11) and in the context of consumer contracts (third paragraph of Article 14), but no more is it defined there. In contrast, the concept of relatedness or sufficient connection (‘connexité’) is defined in the third paragraph of Article 22 in the context of the provisions relating to jurisdiction based on ‘Lis pendens — related actions’ (Section 8 of Title II):

‘For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

9.

These were the difficulties that the national court was faced with in proceedings the facts of which are as follows.

10.

On 10 August 1979, an exclusive sales agency contract was concluded between a German shoe manufacturer, Schuhfabrik Otterheck GmbH & Co. (hereinafter ‘the appellant in the main proceedings’or ‘the appellant’), and a Danish company, Danvœm Production A/S (hereinafter ‘the respondent in the main proceedings’or ‘the respondent’). The contract gave the respondent in the main proceedings the exclusive right to sell in Denmark a product range manufactured by the appellant in the main proceedings (safety shoes). Initially concluded for one year, the contract was renewable by tacit acquiescence every three years. It provided that it was governed by German law and that the courts at Duisburg would have jurisdiction.

11.

On 22 March 1990, the appellant unilaterally terminated the contract with immediate effect.

12.

Since the respondent had not paid for certain deliveries, the appellant brought an action for the recovery of its debts (DKR 223173.39) in the Byret (District Court), Brønderslev, in spite of the jurisdiction clause in the contract. The respondent submitted that the claim should be dismissed and pleaded a number of counterclaims, one of which — amounting to DKR 909684 — was for damage allegedly sustained on account of the wrongful termination of the contract.

13.

By judgment of 26 March 1991, the Byret, Brønderslev, upheld the appellant's claim and dismissed as inadmissible the claim of the respondent in the main proceedings ‘... in so far as it sought a separate decision and in so far as it requested a set-off’on the ground that there was no ‘connection between the claims (the one being for payment for goods supplied, the other for damages for the non-performance and wrongful termination of a contract) such as would enable the defendant, pursuant to Article 6(3) of the Brussels Convention, to have its counterclaim dealt with by the court in Brønderslev or have the amount requested set off ...’. ( 3 )

14.

In an appeal to the Vestre Landsret, the respondent withdrew its claim for a separate decision and simply asserted a claim to DKR 223173.39, corresponding to the main claim, with a view to a set-off. It argued that the Vestre Landsret had jurisdiction under Article 6(3) of the Convention on the ground that that provision was applicable to set-offs. In order to establish that the requirement for sufficient connection laid down by that provision was fulfilled, it referred to the interpretation of that concept which is set out in the third paragraph of Article 22 of the Convention.

15.

Since it questioned whether it had jurisdiction under the rules of the Convention, the Vestre Landsret decide to stay the proceedings and refer the following questions to the Court of Justice:

16.

Given that the Convention makes no stipulation regarding this matter, the national court's first question asks very precisely whether a claim for set-off is to be regarded as a ‘counterclaim’ within the meaning of Article 6(3). If that were so, under that provision the court seised of the original claim should also have heard and determined the set-off pleaded by the respondent, since it exhibited the requisite connection with the original claim. The second question is concerned with the meaning of the concept of sufficient connection.

17.

At first sight, this question may seem surprising. Article 6(3) refers only to a ‘counterclaim’and not at all to a ‘set-off’. At first water, the two terms seem completely different: the first seeks a separate decision, whilst, procedurally, the second is generally regarded as being simply a ground of defence. However, the order for reference explains the Danish court's questions. The national court mentions that in Danish different terms do not exist to designate a counterclaim with a view to a separate decision, on the one hand, and a counterclaim with a view to a set-off, on the other: the word ‘modfordringer’ is used to cover both concepts and it is precisely that term which appears in the Danish version of the Convention.

18.

The Danish procedural provisions governing counterclaims set out in Article 249(2) of the Retsplejelov (Law on the Administration of Justice) may seem unfamiliar and add to the confusion of lawyers of other nationalities. Article 249(2) of the Retsplejelov reads as follows:

‘A defendant may, during proceedings in a case, submit a counterclaim ( 4 ) (“modkrav”) requesting that the court find fully or partially in the defendant's favour in respect of the plaintiffs claim or that the court give judgment in favour of the counterclaim or a part thereof, on condition that the counterclaim may be treated according to the same procedural rules as the plaintiff's claim. A separate decision in respect of the counterclaim, however, may be given only if there is a court with jurisdiction in respect of the claim in Denmark or if the claim arises from the same contract or facts as those on which the plaintiff's claim is based.’

In French law, for example, where the form of order sought is to the effect that the Court should ‘find fully or partially in the defendant's favour in respect of the plaintiff's claim’ this would be classed as ‘conclusions en réponse’, the term ‘counterclaim’ being reserved for the second type of claim to the effect that ‘the court [should] give judgment in favour of the counterclaim or a part there-of.’

19.

Having regard to these difficulties, it falls to the Court to interpret Article 6(3) of the Convention in order to determine whether it also applies to set-offs.

20.

The first question which should be answered relates to the choice of the method of interpretation: must the provision be interpreted in the light of national law (‘national’interpretation; in this case, the Danish court would accept jurisdiction over the set-off) or must it defined on the basis of the Convention itself (‘independent’interpretation)? The Convention supplies no answer to this question and the Court has had recourse to both methods of interpretation. ( 5 ) However, the Court has held that ‘... the appropriate choice can only be made in respect of each of the provisions of the Convention to ensure that it is fully effective having regard to the objectives of Article 220 of the Treaty’, ( 6 ) whilst to date giving much more prominence to ‘independent’interpretation.

21.

The Court has explained in general terms the basis for electing for an ‘independent’ interpretation in Shearson Lehman Hutton: ( 7 )‘... the principle established by case-law (see in particular the judgments in Case 150/77 Bertrand ν Ott [1978] ECK. 1431, paragraphs 14, 15, 16 and 19, and in Case C-26/91 Handte [1992] ECRI-3967, paragraph 10) must be borne in mind; according to that principle, the concepts used in the Convention, which may have a different content according to the national law of the Member States, must be interpreted independently, by reference principally to the system and objectives of the Convention, in order to ensure that the Convention is applied uniformly in all the Contracting States.’

22.

More specifically, the Court has held that ‘... terminological differences ... between the various language versions of the Convention’, as exist in this case, justify opting for an ‘independent’ interpretation ‘... in order to ensure as far as possible that the rights and obligations of the Contracting States and of the persons concerned arising from the Convention are equal and uniform’. ( 8 ) Hence it is that approach which I shall take.

23.

Since the Convention does not provide, as I have mentioned, ( 9 ) any definition of ‘counterclaim’ or a fortiori of set-off — since that term is not used in any provision whatsoever —, it will be necessary to agree on the meaning of those terms in order to determinate whether there is any distinction between them. I shall therefore consider them in turn.

24.

The Jenard Report ( 10 ) is also silent on this point. However, it does mention that the wording of Article 6(3) is based on the draft Belgian Judicial Code. ( 11 ) Let us therefore refer to that code.

25.

Article 15 of the draft Belgian Judicial Code ( 12 ) defines a ‘demande reconventionnelle’ (counterclaim) as ‘... an incidental claim made by the defendant which seeks a decision against the plaintiff’. ( 13 )

The draftsman explains that provision more specifically as follows:

‘This definition is aligned with the approach which the French Court of Cassation proposed to the Government in its 1806 draft Code of Civil Procedure: that of a contre-prétention (counterclaim) ( 14 ) which is admissible in every case where such a claim is not barred by law. In addition, it accords with academic writings and the case-law, which, in the absence of a definition of a demande reconventionnelle (counterclaim) in the Code itself, has identified its basic constituents in a manner which may be summarized as follows: (1) a counterclaim is incidental, that is to say, it is introduced into pending proceedings even though it could have given rise to separate main proceedings; (2) it goes beyond seeking to have the plaintiff's case dismissed and costs awarded against him: the defendant, acting as plaintiff in his turn, seeks a riding against the defendant. Thus, in a judgment of 4 November 1949, the Court of Cassation recognized as being a counterclaim and not merely a ground of defence a head of claim seeking “compensation for damage independent of the performance on which the plaintiff's action was based”. Such a claim must doubtless be made during the main proceedings, which makes sense and implies that the parties should be the same. But its course and its outcome are independent of the main claim; if the principal plaintiff withdraws, this does not terminate the counterclaim.’ ( 15 )

26.

It can therefore be held at this juncture that a counterclaim is characterized by the following essential aspects:

27.

As far as ‘compensation’or ‘set-off’ is concerned, no reference is made to it either in the Jenard Report — as I have already mentioned — or in the draft Belgian Judicial Code on which it was based. The reason is simple: it is not a concept of procedural law but of civil law, more specifically of the law of obligations.

28.

The mechanism is known to all the national legal systems of the States party to the Convention. A few examples may be mentioned:

29.

It can generally be held that set-off consists of a way of simultaneously extinguishing two separate obligations (generally pecuniary) which exist concurrently between two persons who are indebted to each other, to the extent of the smaller debt.

30.

It can be seen from these few examples that, whilst the concept of ‘set-off’does exist in the various national legal systems, it may mask different situations as regards the rules for implementing it, the procedural rules and its effects (Danish law affords a perfect example of this).

31.

Taking a general perspective, a distinction can be drawn between three ‘families’ of national laws as regards the concept of setoff:

32.

From the procedural point of view, the ambiguity depends on the fact that, depending on the ‘family’of laws considered, or even within each of them, set-off may be regarded either as merely a substantive ground of defence or as a reconventional demand.

This point has already been considered by Advocate General Capotorti in Meeth ν ductal: ( 16 )

‘With regard to procedure, ... two situations may arise: the case where the defendant relies on the plaintiff's debt exclusively as a defence and the case where the defendant submits a counterclaim. The difference is that the defence is concerned exclusively to obtain the dismissal of the plaintiff's claim, whilst the counterclaim is intended to establish a claim by the defendant and accordingly to obtain a ruling against the plaintiff. In the case of the set-off the defendant may rely on this defence to justify his non-payment of the debt claimed by the plaintiff; but he must introduce a counterclaim if he wishes his own debt to be recognized in its entirety and to obtain a ruling compelling the plaintiff to make payment (full payment if the court rules that the plaintiff's claim is unfounded; partial payment if it upholds the plaintiff's claim but the amount to which the defendant is entitled exceeds that owing to the plaintiff).’ ( 17 )

33.

Consequently, it can be considered, in parallel to the above study of counterclaims, that set-offs are characterized by the following essential features:

34.

May it be inferred from this consideration of those two concepts central to this request for a preliminary ruling similarities such that they may be equated with each other in the intention of the draftsmen of the Convention? As has just been shown, there are two types of set-off: that pleaded as part of a counterclaim and that pleaded as a ground of defence. As far as the first is concerned, it manifestly falls within the circumstances contemplated by Article 6(3), since it ‘[arises] from the same contract or facts on which the original claim was based’. In contrast, it is more doubtful whether the second type of set-off — and it would seem that it is to this type that the national court is referring — is caught by Article 6(3).

35.

The aim sought by the head of jurisdiction provided for in Article 6(3) can clearly be understood. By enabling a counterclaim to be raised before the same court seised of the original claim, the draftsmen of the Convention sought to obviate superfluous, multiple proceedings and to enable the parties to settle the whole of their reciprocal claims in the same proceedings and before the same court. Could not authorizing the same head of jurisdiction to cover set-offs pursue the same aim? I think not, for the following reasons.

36.

First, as has been seen, the national rules on set-off vary from one State to another and the connection which is to exist between the original claim and the claim to set-off may not be the same as the close connection which is required of counterclaims under Article 6(3) of the Convention (this connection will be considered in answering the second question). Thus, as the United Kingdom points out, the application of Article 6(3) to set-off could result in a significant narrowing of the circumstances in which set-off could competently be entertained in an action covered by the Convention and thereby lead to a multiplicity of separate actions in more than one country. This would miss one of the essential aims of the Convention.

37.

I have already pointed out that that Article 6(3) of the Convention is based on the Belgian Judicial Code, which covers only a counterclaim ‘which seeks a decision against the plaintiff’. The opening words of Article 6 introducing paragraph 3, ‘a person domiciled in a Contracting State may also be sued’, should be given the same meaning: Article 6(3) of the Convention applies only to a claim seeking a separate decision. A setoff pleaded as a ground of defence, however, merely asks the court to dismiss the plaintiff's claims and does not seek a separate order.

38.

In addition, I have pointed to the ambiguity of the Danish terminology used to designate a ‘counterclaim’within the meaning of Article 6(3). It cannot be precisely inferred from the term used (‘modfordringer’) whether it designates a claim pleaded by way of defence or a claim seeking a separate decision or both (yet two different terms do exist in Danish, and one of them could have been used in Article 6(3): ‘modrav til kompensation’and ‘modrav til selvstændig dom’, which might be translated as ‘claim to set-off’and ‘claim for a separate decision’). In the other legal systems, there also exist separate expressions to designate the two concepts: in French law, ‘demande à titre d'exception’and ‘demande reconventionnelle’; in English law, ‘set-off as a defence’ and ‘counterclaim’; in German law, ‘verteidigungsweise Geltendmachung einer Forderung’and ‘Widerklage’, and in Italian law, ‘eccezione di compensazione’ and ‘domanda riconvenzionale’. However, unlike in the case of the Danish version, it is the expressions ‘demande reconventionnelle’, ‘counterclaim’, ‘Widerklage’ and ‘domanda riconvenzionale’ which are set out in the relevant language versions of Article 6(3) of the Convention. Here again, the language versions clearly indicate that the concept of ‘counterclaim’ within the meaning of the Convention is intended to be that of a claim for a separate decision.

39.

Lastly and more generally, I would point out that the head of jurisdiction provided for by Article 6(3) constitutes an exception to the general rule set out in Article 2. By introducing a counterclaim, the original defendant will become a plaintiff, and whereas in principle the plaintiff must bring his action in the courts of the defendant's domicile (the original plaintiff in these circumstances), Article 6(3) enables him, by way of exception, to assert his claim in the court originally seised, that is to say, generally in the court of his domicile, that is to say, the defendant's court. Consequently, Article 6(3) makes the forum actoris possible. Admittedly, as has been seen, that provision fulfils a quite specific aim of the Convention. However, to my mind, Article 6(3) must continue to be in the nature of an exception and must therefore not be too broadly interpreted. The opposite interpretation would ultimately end up by multiplying a head of jurisdiction based on the plaintiff's (even a person bringing a counterclaim's) domicile, thereby facilitating the forum actoris, whereas the whole system of jurisdiction introduced by the Convention gives preeminence to the defendant's domicile. Moreover, the Court has held that ‘apart from the cases expressly provided for, the Convention appears clearly hostile towards the attribution of jurisdiction to the courts of the plaintiff's domicile (see judgment in Case C-220/88 Dumez France and Tracoba [1990] ECR I-49, paragraphs 16 and 19)’. ( 18 )

40.

Moreover, the Court has held in a judgment concerned with Article 5, which deals, in common with Article 6, with ‘special jurisdiction’, that it is in accord with the objective of the Convention ‘... to avoid a wide and multifarious interpretation of the exceptions to the general rule of jurisdiction contained in Article 2’. ( 19 ) More generally, the Court has held that provisions providing for heads of special jurisdiction ( 20 ) or for exclusive jurisdiction ( 21 ) must be strictly interpreted. This is why the Court has laid down the following principle:

‘It is only by derogation from that general principle [set out in the first paragraph of Article 2] that the Convention provides for cases, exhaustively listed in Sections 2 to 6 of Title II, in which a defendant domiciled or established in a Contracting State may, where the situation comes under a rule of special jurisdiction, or must, where the situation comes under a rule of exclusive jurisdiction or of prorogation of jurisdiction, be sued in the courts of another Contracting State.

Consequently, the rules of jurisdiction which derogate from that general principle cannot give rise to an interpretation going beyond the cases envisaged by the Convention (see the abovementioned judgments in Bertrand ν Ott, at paragraph 17, and Handle, at paragraph 14).’ ( 22 )

41.

By the same token, therefore, the Court should not give a broad interpretation to Article 6(3) so as to cover the term ‘set-off’, since it may encompass two separate concepts.

42.

For all those reasons, I conclude that Article 6(3) should be interpreted as meaning that it covers only a claim pleaded with a view to obtaining a separate decision. If the claim is pleaded as a set-off seeking merely that the plaintiff's claims be dismissed, the Convention does not apply. There is no need to restrict its admissibility and reference should be made in such a case to the rules of national law in order to establish whether such a ground of defence may be pleaded. Moreover, this is the idea underlying the Court's case-law in which it has held that it is irrelevant ‘... that the defendant's claim for a set-off is not based on the same contract or subject-matter as the main application. That fact relates to the admissibility of a claim for a set-off which depends on the law of the State in which the court seised of the proceedings is situated’. ( 23 )

43.

Let us now turn to the second question.

44.

The national court raises the question of the interpretation of sufficient connection referred to in Article 6(3) only in the event that ‘... Article 6(3) cover [s] counterclaims for set-offs’. ( 24 ) Inasmuch as I take the view that Article 6(3) of the Convention is not applicable to a set-off pleaded as a defence, it is unnecessary to consider the second question where it is so pleaded. However, the question is still relevant where set-off is pleaded in a counterclaim. It is therefore in the light of that eventuality that I shall set out my observations on the second question.

45.

The connection required according to Article 6(3) is expressed in the following terms: ‘... arising from the same contract or facts on which the original claim was based’.

The Jenard Report explains those words as follows: ‘It has been made clear that in order to establish this jurisdiction the counterclaim must be related to the original claim. Since the concept of related actions is not recognized in all the legal systems, the provision in question, following the draft Belgian Judicial Code, states that the counterclaim must arise from the contract or the facts on which the original claim was based.’ ( 25 )

46.

I mentioned in the introductory part of this Opinion that more express reference is made to the concept of ‘sufficient connection’in the third paragraph of Article 22. But that provision, albeit part of the provisions on ‘Jurisdiction’ (Title II), does not, unlike Article 6, come under the heading of ‘Special jurisdiction’(Section 2), but under that of ‘Lis pendens — Related Actions’ (Section 8).

47.

Those two provisions therefore deal with different procedural situations.

48.

The Jenard Report describes the objective of Article 22 of the Convention as follows: it serves ‘to avoid the risk of conflicting judgments and thus to facilitate the proper administration of justice in the Community’. But the ‘judgments’ referred to are judgments liable to be given by two courts in two different States party to the Convention and not judgments handed down by a court in one State, the eventuality contemplated by Article 6(3).

49.

Consequently, no general meaning to be attributed to the concept of ‘sufficient connection’for the purposes of the Convention could be inferred from the wording of the third paragraph of Article 22, which is motivated by the very specific intention to avoid conflicting judgments as between Contracting States. The concept of sufficient connection is moreover stated in that provision to be ‘for the purposes of this Article’.

50.

In any event, this is the interpretation which the Court has adopted:

‘Article 22 of the Convention is intended to establish how related actions which have been brought before courts of different Member States are to be dealt with. It does not confer jurisdiction; in particular, it does not accord jurisdiction to a court of a Contracting State to try an action which is related to another action of which that court is seised pursuant to the rules of the Convention’.

The Court concluded that

‘... Article 22 of the Convention applies only where related actions are brought before courts of two or more Contracting States’. ( 26 )

51.

I therefore conclude that the requirements relating to sufficient connection referred to in Articles 6(3) (‘counterclaim arising from the same contract or facts on which the original claim was based’) and in the third paragraph of Article 22 (‘actions ... so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’) ought not to construed in the same way, since they relate to two completely distinct procedural situations.

52.

In view of the foregoing considerations, I propose that the reply to be given to the national court's questions should be as follows: