Opinion of the Advocate-General

Opinion of the Advocate-General

I – Introduction

1. The reference for a preliminary ruling made by the Cour de Cassation (France) concerns the interpretation of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. (2)

2. That reference has been made in proceedings brought before a French court in the course of which the clause conferring jurisdiction on an Italian court which was set out in the sales contract between the manufacturer, established in Italy, and the original purchaser of the contested goods, also established in Italy, was relied on by that manufacturer against a French sub-buyer and the insurer, also French, subrogated to the rights of that sub-buyer. The legal issues involved are important beyond the scope of this specific case, as international traders frequently rely on jurisdiction clauses.

3. The Court is thus requested to rule on whether, and if so, under what conditions, Article 23 of Regulation No 44/2001 allows a clause conferring jurisdiction incorporated into an original contract to be passed down a chain of contracts which have been successively concluded between economic operators established in different Member States of the European Union. (3) It must decide whether it is necessary to refer to the applicable national law to determine whether or not jurisdiction clauses may be enforced against third parties who have not consented to such agreements, in line with its previous case-law concerning the extension to third-party carriers of such a clause as set out in a bill of lading, (4) or whether it is necessary to lay down an autonomous substantive rule, as recently considered by the European Parliament as part of the work on recasting Regulation No 44/2001. (5)

4. The order for reference also establishes a relationship between those issues and the judgment in Handte , (6) which relates to the concept of ‘matters relating to a contract’ within the meaning of Article 5(1) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (‘the Brussels Convention’), (7) which is equivalent in essence to Article 5(1) of Regulation No 44/2001. As that judgment confirmed that the legal relationship between a manufacturer and a sub-buyer was not contractual in nature for the purposes of the interpretation of that provision, the Cour de cassation questions what impact that case-law may have on the enforceability against the second of those operators of a clause conferring jurisdiction set out in a contract signed only by the first.

II – Legal context

5. Recital 11 to Regulation No 44/2001 states that: ‘[t]he rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor …’

6. Article 5(1)(a) of Regulation No 44/2001, which appears in Section 2 of Chapter II, entitled ‘Special jurisdiction’, provides that in matters relating to a contract, a person domiciled in a Member State may, in another Member State, be sued in the courts for the place of performance of the obligation in question.

7. Article 23(1) of Regulation No 44/2001, which appears in Section 7 of Chapter II, on the ‘Prorogation of jurisdiction’, provides:

‘If the parties, one or more of whom is domiciled in a Member State, 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. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

(a) in writing or evidenced in writing; or

(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.’

III – The main proceedings, the questions referred and the procedure before the Court

8. SNC Doumer (‘Doumer’) had renovation work carried out on a building complex located in Courbevoie (France), and had taken out insurance with Axa Corporate Solutions Assurance SA (‘Axa Corporate’), whose registered office is at Paris, France.

9. As part of that work, air-conditioning units each equipped with a number of compressors were installed, which had been:

– manufactured by Refcomp SpA (‘Refcomp’), whose registered office is in Italy,

– purchased from that company and assembled by Climaveneta SpA (‘Climaveneta’), whose registered office is also located in Italy,

– supplied to Doumer by Liebert, to whose rights Emerson Network Power (‘Emerson’), itself insured with Axa France IARD (‘Axa France’), is subrogated, the respective registered offices of which are located in France.

10. Irregularities occurred in the air-conditioning system following installation. An expert’s report ordered by a court revealed that those failures were caused by a defect in the manufacturing of the compressors.

11. Subrogated to the rights of Doumer, to which it paid compensation as its insured, Axa Corporate summoned the manufacturer Refcomp, the assembler Climaveneta and the supplier Emerson to appear before the Tribunal de grande instance de Paris (Regional Court, Paris), for the purposes of claiming from them in solidum compensation in respect of that defect.

12. The two Italian defendant companies contested the jurisdiction of the Tribunal de grande instance de Paris, relying, in respect of Climaveneta, on an arbitration clause which appears in the distribution contract between it and Emerson, and, in respect of Refcomp, on a clause conferring jurisdiction on an Italian court which was included in the general terms of the sales contract concluded between itself and Climaveneta.

13. By order of 26 January 2007, the judge preparing the case for trial at the Tribunal de grande instance de Paris rejected the objections of lack of jurisdiction raised by Climaveneta and Refcomp. Those companies lodged an appeal against that order.

14. By judgment of 19 December 2008, the Cour d’appel de Paris (Court of Appeal, Paris) reversed the order appealed against in so far as it had rejected the objection raised by Climaveneta. It held that the Tribunal de grande instance de Paris did not have jurisdiction to hear and determine the claim brought against that company on the ground that, in a chain of contracts transferring ownership, an arbitration clause was automatically transferred as an appurtenance to the right of action which is itself an appurtenance to the substantive rights transferred, the homogeneous or heterogeneous nature of the chain being of little importance.

15. By contrast, the Cour d’appel de Paris upheld the rejection of the objection of lack of jurisdiction raised by Refcomp. It justified its decision stating that the rules governing special jurisdiction in matters relating to a contract laid down in Article 5(1) of Regulation No 44/2001 did not apply to a dispute between the sub-buyer of goods and the manufacturer who was not the seller, since such a dispute concerns matters relating to tort or delict, which are governed by the provisions of Article 5(3) of that regulation, and stated that Article 23 thereof was no longer applicable since the action had no contractual basis. It thus held that the clause conferring jurisdiction agreed between the manufacturer and the intermediary seller was not enforceable against the insurer subrogated to the rights of the sub-buyer and that the French court to which reference had been made had jurisdiction in view of the place in which the damage occurred.

16. That judgment of the Cour d’appel de Paris was the subject of a main appeal, brought by Refcomp, and a cross-appeal brought by Emerson.

17. By judgment of 17 November 2010, the Cour de Cassation dismissed that cross-appeal; however, in respect of the main appeal brought by Refcomp, it decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Is a clause conferring jurisdiction which has been agreed, in a chain of contracts under Community law, between a manufacturer of goods and a buyer in accordance with Article 23 of Regulation [No 44/2001] effective as against the sub-buyer and, if so, under what conditions?

2. Is the clause conferring jurisdiction effective as against the sub-buyer and its subrogated insurers even if Article 5(1) of Regulation [No 44/2001] does not apply to the sub-buyer’s action against the manufacturer, as the Court held in its judgment of 17 June 1992 in Handte ?’

18. The Court received written observations from Refcomp, Axa Corporate and Emerson, the French, German and Spanish Governments and the European Commission.

19. At the hearing of 3 May 2012, Refcomp, the French and German Governments and the Commission were represented.

IV – Analysis

A –  Introductory remarks

20. The two questions referred to above ask the Court to rule, in essence, on the passing-on of a clause conferring jurisdiction within a chain of contracts concluded by parties established in different Member States and, in particular, on the legal effects of such a clause as against a sub-buyer (8) who has not signed the contract in which that clause is set out and who appears not have to given its consent in that respect as provided for by Article 23 of Regulation No 44/2001. (9)

21. Even though the order for reference does not include an express statement of reasons, it is clear from the information in the file that the questions put by the French Cour de cassation have their origin in the following facts.

22. Firstly, the issue is linked to the existence of a rule of domestic law, namely the legal theory according to which, although the principle of privity of contract ordinarily applies, in that contracts are binding only on the parties who have signed them, an exception is nevertheless made to that principle where there is a transfer of ownership, ownership being transferred to all the subsequent purchasers of the goods concerned together with all elements appurtenant to it. It follows that, in French law, the sub-buyer of goods may bring an action for damages against the seller, or against any of the intermediaries who sold the goods or even directly against the manufacturer of those goods.

23. Secondly, with regard to any automatic transferability appurtenant to the right of contractual action, which is itself appurtenant to the transferred right of ownership, of the clause conferring jurisdiction which is inserted into the original contract of a European chain of contracts transferring ownership, there are three opposing schools of thought within French legal theory, in the light of the case-law of the Court of Justice: (10)

– for some, such a clause is always enforceable against the sub-buyer of the goods which are the subject of the transaction despite the fact that it is not a party to that contract and has therefore not agreed to the clause,

– for others, however, there should never be transferability,

– while there are those who favour a half-way house, according to which such a clause may be transferred in certain cases, namely where the rights and obligations of the original purchaser are transferred in full to subsequent purchasers.

24. These issues are not peculiar to French law, since the same legal fiction exists within the legal systems of certain other Member States. (11) Furthermore, the challenges involved in the case are not only theoretical but also economic. Indeed, the Court’s response to the reference for a preliminary ruling will have a potentially significant impact because clauses conferring jurisdiction are very frequently concluded (12) in international trade operations and it is therefore very possible that they form part of chains of contracts transferring ownership which relate to the territory of several Member States.

25. In that regard, I would point out that the line of questioning taken by the national court refers to the treatment to be given to a clause conferring jurisdiction which forms part of a ‘chain of contracts under Community law’, since the economic operators who are party to the successive contracts of the chain at issue in the main proceedings are established in different Member States. More specifically, the Court must take a view on whether such a clause falls under the scope of Article 23 of Regulation No 44/2001. Under Article 23(1), it is sufficient, in principle, for at least one of the parties to the proceedings, applicant or defendant, to be domiciled in a Member State of the European Union, (13) which is certainly the case here.

26. Furthermore, I would note that the questions referred in the present case relate to a ‘clause conferring jurisdiction’, while the provisions of Article 23 of Regulation No 44/2001 govern two types of ‘agreement conferring jurisdiction’ and encompass both jurisdiction clauses which are included in contracts, in anticipation of a future dispute, and agreements conferring jurisdiction which are concluded outside that framework, where a dispute has already arisen. (14) Despite the fact that that article covers both type of agreement, given the restriction imposed on the scope of its request by the national court and the specific subject-matter of the dispute in the main proceedings, it is my view that the answers given should focus on that aspect and therefore refer only to contractual ‘clauses’ conferring jurisdiction over disputes in the future.

27. Furthermore, I would point out that, even though the national court questions the Court, in general terms, as to the legal ‘effects’ on a sub-buyer of a clause conferring jurisdiction, the scope of the answer proposed to the Court in this Opinion will be limited to the question whether a clause of that type is to be implemented to the detriment of such a third party, and will not consider a situation in which it would invoke the clause in its favour. (15) In the light of the subject-matter of the dispute in the main proceedings, the answer to the questions referred from that latter standpoint would not be useful to the national court for the purposes of resolving that dispute. The Court is therefore required to give a ruling only on the enforceability against a sub-buyer of a clause conferring jurisdiction, and not on any of its other possible effects.

28. Lastly, I would point out that the answers set out in the case-law relating to the Brussels Convention may be transposed to Regulation No 44/2001 in so far as the wording of the provisions affected by the reference for a preliminary ruling on that regulation is, in essence, equivalent to that of the provisions of the Convention which have been interpreted by the Court. (16) In this instance, the provisions of Article 17 of the Brussels Convention and those of Article 23 of Regulation No 44/2001 are broadly similar, even though there are some differences between them. In the light of their wording, those differences do not affect the comparability of the factors which are relevant for the purposes of answering the questions referred to the Court in the present case.

B –  The possible binding effect on the sub-buyer of goods of a clause conferring jurisdiction inserted into an original sales contract

29. By its first question, the national court asks the Court, in essence, whether, for the purposes of Article 23 of Regulation No 44/2001, the manufacturer who is party to the first contract in a chain, which contains a clause conferring jurisdiction, may rely on that clause to challenge the jurisdiction of the court before which an action has been brought against it by the sub-buyer, who is a third party to that contract but who relies on the improper performance of that contract by the defendant, each being established in different Member States.

30. The interveners in the present proceedings made different recommendations as to the answers which should be given. Unlike Refcomp, Axa Corporate and Emerson entirely deny the transferability of the clause conferring jurisdiction with regard to the sub-buyer in such a context. However, the German and Spanish Governments accept that a clause concluded under the conditions provided for in Article 23 of Regulation No 44/2001 is effective as against the sub-buyer where that third party has entirely assumed the rights and obligations of one of the parties to the original contract in accordance with the applicable national law. The French Government and the Commission consider that such a clause may be relied on against the sub-buyer only on the condition that it gave its consent to that clause in accordance with the requirements of that article, irrespective of the applicable national law.

1. The appropriateness of laying down a substantive rule of interpretation

31. Notwithstanding the fact that the national court did not put it in these terms, the central issue underpinning the first question referred, as is clear from the views held by the aforementioned interveners, is whether the Court should give an interpretation of Article 23 of Regulation No 44/2001 which varies depending on the provisions of national law which are capable of governing the contested relationship, or which is valid whatever the wording of those provisions.

32. The latter method would, in the present case, require the Court to establish whether, where Article 23 applies, a clause conferring jurisdiction is enforceable as against a third party in circumstances such as those in the dispute in the main proceedings, without making reference to the possible effects of the law of any particular Member State on the legal relationship at issue. (17)

33. It is my view that giving priority to the laying down of a substantive rule which is specific to European Union law would have the advantage of ensuring better functioning of the rules of jurisdiction laid down in Regulation No 44/2001. Indeed, the Court has repeatedly ruled that, in order to ensure that it is fully effective and uniformly applied in all the Member States, the terms contained in that regulation must, as a rule, be interpreted not by reference only to the domestic law of one or other of the Member States concerned but independently, by reference principally to the system and objectives of the text. (18) It is my view that that method of interpretation of the provisions of Regulation No 44/2001 must guide the Court not only where it is simply giving a definition of the words, expressions or concepts contained therein, but also where it is asked to establish the purpose or scope of those provisions. (19)

34. In the present case, if account were taken of the national law applicable to the legal relationship at issue, the answer to the present question of the transferability of a clause conferring jurisdiction would not be uniform but of variable geometry, given the differences of approach found between the laws of the Member States as regards the legal nature of the relationship between the manufacturer of goods and the sub-buyer of those goods, (20) in addition to the specific problem of the possible extension to that third party of the effects of a clause to which it has not agreed.

35. Moreover, the laying down of a substantive rule by the Court would facilitate the task of the courts of the Member States. Since the regulation on the law applicable to contractual obligations (21) governs neither the validity nor the effects of clauses conferring jurisdiction, any reference to national law would require those courts to identify which legal system should be consulted in this regard. The problem of knowing which law to apply and when is indeed a classic problem where a clause conferring jurisdiction is relied on in a situation involving extraneous elements, but the difficulty of relying on conflict-of-law rules is even more pronounced in the event of multiple contracts, as in the dispute in the main proceedings, since there are many legislative systems which are potentially applicable. (22)

36. It would also be in the interest of both parties to the proceedings to know immediately whether or not a court is competent under a clause conferring jurisdiction set out in a contract which has not been signed by the applicant, without having to face the uncertainty caused by reference to the differing approaches found in the Member States. It would be appropriate, in my view, to interpret Article 23 of Regulation No 44/2001 in such a way that determination of the competent court does not depend on uncertain and unforeseeable circumstances, an issue which is a matter of general concern to the Court. (23)

37. I would add that, as Regulation No 44/2001 abandoned the method involving conflict-of-law rules which was adopted in Industrie Tessili Italiana Como , (24) a commendable move made in the interests of simplification, (25) the reintroduction of an interpretation based on that method would be inconsistent with the direction in which the European Union legislature thus seeks to proceed.

38. Similarly, when it specifically addressed the problem which is the subject of the present case in the context of the current recasting of Article 23 of Regulation No 44/2001, the Parliament declared it was in favour of adopting a substantive rule setting out conditions, with no reference to the legal systems of the Member States, in order to restrict the enforceability of the choice-of-court agreements governed by that article against third parties who have not expressly consented to such an agreement, given the risk, which would otherwise exist, of infringing the right of those persons to have full access to justice. (26) I propose that the Court should follow the same approach.

2. The literal interpretation of Article 23 of Regulation No 44/2001

39. In its current wording, Article 23 of Regulation No 44/2001 determines the formal and substantive conditions of the validity of the agreements conferring jurisdiction which it governs, but does not entirely determine the scope and effects of those conditions. In particular, it does not specify which persons may be considered as being a ‘party’ to such an agreement, or whether a choice-of-court clause may be transferred from the parties to one contract to those to another contract in its capacity as an appurtenance to the ownership of goods. (27)

40. The only clarity contained in the current text as regards the legal effects of clauses conferring jurisdiction is that the jurisdiction granted to the courts designated by the parties is exclusive. (28) However, that has no bearing on the possible binding effect of those clauses as regards third parties.

41. As regards terminology, I would point out that, by referring to a situation in which ‘the parties have agreed that a court’ (emphasis added), Article 23 of Regulation No 44/2001 requires there to have been an ‘agreement’ between them as regards the choice of court. The designation by those parties of a court other than that which should have had jurisdiction under that regulation is justified by a desire to respect the freedom of choice of the parties to proceedings, as stated in recital 11 therein, but it should also be the case that both the applicant and defendant have chosen to refer the dispute to that court.

42. As the Court pointed out with regard to the corresponding provision of the Brussels Convention, (29) the series of formal conditions laid down in Article 23 of Regulation No 44/2001 makes central to the validity of the clause conferring jurisdiction evidence of the existence of an agreement by the parties against whom that clause is enforced. It follows that, in the event of a dispute, the court seised must, as a rule, specifically verify that approval has duly been given by the person against whom that clause has been invoked.

43. It is true that the Court has accepted that a clause conferring jurisdiction may produce legal effects with regard to a person who has not formally agreed to it, but only in specific circumstances, in particular in judgments relating to bills of lading, to which I will return later. As claimed by Refcomp, the Court has indeed ruled that the approval of a clause of that kind may result from the conclusion of the statutes of a company, (30) but that is not at all the situation in the present case. The Court has also accepted such effects in judgments relating to insurance, yet only where they are to the advantage of a third party, (31) on the ground that the latter benefited from a stipulation in its favour and the fact that protection of the weaker party (32) is the purpose of the rules of jurisdiction applicable to such matters. (33) There is no comparable mechanism or purpose in the facts of the present case. (34)

44. Lastly, I would point out that Article 23 of Regulation No 44/2001 requires the agreement conferring jurisdiction to form part of a ‘particular legal relationship’. As derogations from the normal jurisdictional rules of that Regulation were drafted restrictively by the European Union legislature, it follows that the scope of a clause conferring jurisdiction cannot be too wide. (35) However, as noted by Axa Corporate, a chain of European contracts such as that between the manufacturer and the sub-buyer is not ‘a particular legal relationship’ but several relationships in which ‘the parties’ contractual obligations may vary from contract to contract’, in accordance with what has been established by the Court. (36)

3. The teleological interpretation of Article 23 of Regulation No 44/2001

45. It is settled case-law that a provision of European Union law of which interpretation is sought should also be viewed in the light of the objectives which governed its adoption, and that applies in particular to the jurisdiction rules laid down in Regulation No 44/2001. (37)

46. It is clear from recitals 8 and 12 to that regulation that it seeks to favour systems of jurisdiction which allow for a particularly close link to exist between the dispute and the court which is to give judgment. However, in a situation such as that at issue in the main proceedings, I doubt whether it is consistent with that purpose to enable a clause conferring jurisdiction to be binding not only on the parties by whom it was concluded but also on third parties. It is true that Article 23 of Regulation No 44/2001 authorises the parties to such an agreement to choose a court which is located away from the heart of the dispute, (38) for example in the interests of neutrality, and which may therefore be less able to take action such as obtaining an expert’s report on the defects of contested goods. Nevertheless, where such an agreement is relied on against a third party, who by definition has had no influence on that choice and whose interests may be situated in a Member State other than those of the parties to the contract, the risk entailed by distance is not freely entered into. Furthermore, that risk is amplified in a European chain of contracts, it being noted that it is greater the higher the number of intermediary contracts between the contract containing the clause conferring jurisdiction and that which was concluded by the sub-buyer alleging a manufacturing defect.

47. Another fundamental objective of Regulation No 44/2001 is that relating to the harmonising of the different rules concerning jurisdiction applicable in the Member States of the European Union. To achieve that objective, it is necessary, firstly, to lay down ‘common rules on jurisdiction’, as provided for in recital 8 to the regulation, but also, secondly, to establish principles for interpreting those rules so that they may be implemented uniformly by all the courts of the Member States. With regard to the clauses conferring jurisdiction governed by Article 23 of Regulation No 44/2001, there is no guarantee of such a result if those clauses, and in particular their enforceability against third parties, are to be governed not by a principle which falls under a standardised substantive rule but by reference to the different legal systems of the Member States.

48. Regulation No 44/2001 also seeks to ensure the foreseeability of jurisdiction, as stated in recital 11 in the preamble thereto, (39) and therefore the legal certainty of the parties to a dispute, (40) in particular where clauses conferring jurisdiction are concerned.

49. It is my view that it is not easy to apply the criterion of legal certainty of the parties in the present case, as that which is foreseeable for the defendant may not necessarily be so for the claimant, and vice versa. On the one hand, the Italian manufacturer in question included a clause conferring jurisdiction in its general terms of sale in order to be able to foresee before which the court it may be sued in connection with the contract it concluded with the first Italian purchaser of the contested goods. On the other hand, the French sub-buyer did not sign the contract containing that clause and it could reasonably have been unaware of that clause before it was relied on in court against it in proceedings regarding goods installed on French territory.

50. Although the requirement relating to foreseeability is viewed more generally and objectively, that is to say irrespective of the view of the parties to the proceedings, (41) it should be pointed out here that favouring the conflict-of-law method over the laying down of a substantive rule would adversely affect that requirement. Indeed, that method would be a source both of complications, given the difficulty which would be involved in determining which law applied to a clause conferring jurisdiction such as that at issue in the main proceedings, and of uncertainty, given the discrepancies in classifications which would result from that method, depending on which national law had been applied. (42)

51. Lastly, with regard to the specific purpose of Article 23 of Regulation No 44/2001, I would point out that it seeks to authorise the jurisdiction of courts other than those which should, generally, give a ruling under the provisions of that regulation. (43) Since jurisdiction which is prorogated in this way, solely at the parties’ own volition, is exceptional in nature, (44) that consideration must lead to a strict interpretation of that article, in accordance with the Court’s view in settled case-law. (45) The Court has also held, more generally, that the rules of jurisdiction which derogate from the basic rules cannot give rise to an interpretation going beyond the cases expressly envisaged by Regulation No 44/2001. (46) I would infer from this that such clauses should produce binding effects on third parties only in the cases provided for by Regulation No 44/2001 and as set out in the case-law of the Court, such that they may be binding on a third party only where it is proved that the person concerned agreed to them under conditions consistent with those set out in that article.

4. The different interpretation based on the Court’s previous case-law

52. The national court makes no reference to this in the statement of reasons for its decision, but it is apparent from the observations by Refcomp that the latter bases its objection of lack of jurisdiction principally on a series of judgments by the Court of Justice concerning contracts for carriage by sea. Under those judgments, the Court accepted the transfer to the relationship between the carrier and the third-party bearer of a clause conferring jurisdiction laid down in a bill of lading which was established between the carrier and the shipper and then assigned by the shipper to the third-party bearer, without it being necessary for the court seised to verify whether that third party had agreed to the clause, since that third party had succeeded by virtue of the applicable national law to the shipper’s rights and obligations under the conflict-of-law rules in force in the Member State in which the court seised has its seat. (47) Refcomp, like the German and Spanish Governments, infers from this that there is a general rule under which the transferability of a clause of that kind is part and parcel of the fate of the rights and obligations to which that clause relates.

53. However, like Axa Corporate, Emerson, the French Government and the Commission, it is my view that it is not necessary to transpose the answers provided by those judgments to the present case. Given, again, that the competences which are based on the clauses conferring jurisdiction constitute derogations and in view of the restrictive approach which should be followed in order to define the scope of the provisions of Article 23 of Regulation No 44/2001, (48) it is my view that that case-law cannot be extended beyond the specific area relating to bills of lading in which it was adopted. However, it is important not to lose sight of the fact that the dispute in the main proceedings relates to a direct action for a declaration of liability following a series of sales contracts, where the ownership of goods was transferred from one purchaser to another, and not to a tripartite relationship based on a bill of lading, the legal nature of which is very specific.

54. Indeed, it should be recalled that the bill of lading is a receipt issued by a maritime carrier to a consignor of goods, known as a ‘shipper’, in recognition of the transfer of that freight and of the undertaking to deliver it on presentation of that document. It refers, in particular, to the principal conditions of the transport contract concluded between those parties, including any clause conferring jurisdiction. Under most legal systems of the Member States, which agree on this issue, it is also a negotiable, endorsable security which allows the owner to transfer the goods, en route, to a purchaser who becomes, as bearer of the bill of lading, the consignee of the goods and the holder of all the rights and obligations of the shipper in relation to the carrier. It seems to me that, although the bearer of the endorsed security is a third party in relation to the original transport contract, which it did not conclude, it is deemed to have agreed to the main content of that contract, in particular a jurisdiction clause, in so far as the applicable national law provides for the rights and obligations of the shipper to be transferred to it.

55. By contrast, in the context of a succession of sales contracts, the purchase of goods does not involve the transfer of all the rights and obligations of one of the parties to the original contract in favour of and at the expense of a third party such that that person replaces another. Unlike the third-party bearer of the bill of lading, the sub-buyer, who signed a different contract, is not a proper party to the original legal relationship, even if under some national legal systems, such as the French system, it is entitled to bring an action for a declaration of liability directly against the manufacturer. It is my view that, since the sub-buyer remains a third party to the contract containing the clause conferring jurisdiction, the court seised of the dispute should verify whether it was genuinely able to accept that clause laid down by the manufacturer on the terms set out in Regulation No 44/2001.

56. In the light of all of the foregoing, I consider that the answer to the first question referred should be that Article 23 of Regulation No 44/2001 should be interpreted as meaning that a clause conferring jurisdiction agreed between the manufacturer of goods and one of the purchasers of those goods which falls within the scope of the provisions of that article does not produce binding effects against the sub-buyer of those goods who is not party to the contract containing that clause, or against the insurer who is subrogated to the rights of the sub-buyer, (49) unless it is established that that sub-buyer agreed to the clause in accordance with the detailed rules laid down in that article.

57. The substantive rule which I therefore recommend should be laid down by the Court complies with the principle of privity of contract, which takes precedence under most national legal systems. Furthermore, it would have the advantage of taking the same direction as the current work on the review of Regulation No 44/2001, to which I have referred above, as regards, in particular, Article 23. (50)

58. In view of my proposal to answer in the negative, it is not necessary, in my view, to comment further on the second component of the first question referred, which deals, in the alternative, with the definition of the conditions under which a clause of this type could be automatically transferable as against a third person in the context of a chain of contracts, it being noted that the issue of whether or not consent to that clause was validly given by that person is, in my view, the decisive factor for enforceability.

C – The possible impact of the non-contractual nature of the direct action brought by the sub-buyer against the manufacturer

59. The second question referred relates to the impact, as regards the legal effects of a clause conferring jurisdiction in circumstances such as those at issue in the main proceedings, of the view taken by the Court in Handte , cited above. Even though the order for reference does not specify how this issue relates to the earlier one, it seems to me that, given the wording used by the Cour de cassation in the second question, (51) that question is referred mainly in order to cater for the eventuality that the first question is answered in the affirmative, contrary to my recommendation.

60. According to that judgment, (52) the special rule of jurisdiction in ‘matters relating to a contract’ laid down in Article 5(1) of the Brussels Convention, equivalent to Article 5(1) of Regulation No 44/2001, cannot be applied to the action brought by the sub-buyer directly against the manufacturer relating to defects in the goods purchased or to their unsuitability for their intended purpose. It follows that, by contrary inference, such an action is concerned with a ‘matter relating to tort, delict or quasi-delict’ within the meaning of Article 5(3), of one or other of those instruments, (53) a provision from which it is apparent that the court with jurisdiction is that which is located in the place where the harmful event occurred.

61. The Commission considers that the issue of enforceability of the clause conferring jurisdiction against a third party is closely linked to that of the legal nature of the relationship between that third party and one of the parties to the contract containing the clause conferring jurisdiction. It takes the view that the lack of contractual relationship between the sub-buyer and the manufacturer, which was accepted by the Court in Handte , cited above, means that that clause could not be ‘agreed’ between those parties within the meaning of Article 23(1) of Regulation No 44/2001. Emerson also submits that the Court’s classification of the action brought by the sub-buyer against the manufacturer as a matter relating to tort necessarily means that such a clause cannot be relied on against the sub-buyer.

62. By contrast, the French Government considers that the abovementioned wording of Handte , cited above, does not preclude the application of Article 23 of Regulation No 44/2001. Similarly, Refcomp and the German and Spanish Governments take the view that the issue of whether the nature of the direct action by the sub-buyer is contractual or otherwise is legally separate from the issue of the effects of a clause conferring jurisdiction on that sub-buyer.

63. For my part, I consider that it is not necessary to answer the second question referred since, in my view, the definition of the concept of matters relating to a contract within the meaning of Article 5(1) of Regulation No 44/2001, as resulting from Handte , cited above, has no direct impact on the interpretation of Article 23 of that regulation, bearing in mind that the first of those texts lays down rules governing special jurisdiction in such matters, and in no way deals with the legal effects on a third party of a clause conferring jurisdiction as contained in a contract. However, the dispute brought before the national court in the present case relates solely to the latter issue, with which the Court did not concern itself in the context of Handte , and no part of the statement of reasons for that judgment gives grounds for finding that the reasoning set out therein would also apply, by extension or by analogy, in the context of the present case.

64. If the Court considers, however, that it is appropriate to answer the question referred, I accept that there would be little logic in its finding:

– on the one hand, as was found in Handte , cited above, that the action brought by a sub-buyer against the manufacturer in the context of a chain of contracts has no contractual basis under European Union law, because of a lack of obligation freely entered into (54) between those two parties,

– and on the other hand, that a clause conferring jurisdiction laid down in a legal relationship which is contractual in nature could be relied on against a sub-buyer, solely because it is transferred as an appurtenance to that relationship in such a chain, by a manufacturer, even though, pursuant to that judgment, any action against that manufacturer itself would have to be an action in tort or delict.

65. I must admit that the combination of the jurisdiction rules of Regulation No 44/2001 and the rules of national law relied on in the dispute in the main proceedings may, in the present case, result in a situation which is somewhat paradoxical. As, according to the interpretation I propose should be adopted by the Court, the clause conferring jurisdiction provided for by the manufacturer concerned cannot be enforced against the non-consenting sub-buyer under Article 23 of that regulation, that manufacturer will have to arrange for its defence before a court of a Member State other than that in which it is domiciled, the jurisdiction of which is based on the provisions of that regulation which are valid in relation to matters relating to tort or delict, not to contracts, in accordance with Handte , cited above, while it will have to contest an action which seeks, in essence, to call into question its contractual liability rather than its tort liability, in accordance with French law.

V – Conclusion

66. On the basis of the above considerations, I propose that the Court should answer the questions referred by the Cour de cassation as follows:

Article 23 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters should be interpreted as meaning that a clause conferring jurisdiction set out in a sales contract which was concluded between the manufacturer and the original purchaser of goods, and which is part of a chain of contracts signed by parties established in different Member States, cannot be relied on against the sub-buyer of those goods or the insurer subrogated to the rights of that sub-buyer, except where it is established that that third party gave its actual consent as regards the clause under the conditions laid down in that article.

(1) .

(2)  – OJ 2001 L 12, p. 1.

(3)  – In accordance with Article 1(3) of Regulation No 44/2001, the expression ‘Member State’ will refer, in this Opinion, to all Member States of the European Union with the exception of the Kingdom of Denmark.

(4)  – Case 71/83 Russ [1984] ECR 2417; Case C-159/97 Castelletti [1999] ECR I-1597; and Case C-387/98 Coreck [2000] ECR I-9337.

(5)  – Resolution of the European Parliament of 7 September 2010 on the implementation and review of Regulation No 44/2001 [2009/2140(INI), P7_TA(2010)0304, recital O and paragraph 13].

(6)  – Case C-26/91 [1992] ECR I-3697.

(7)  – OJ 1972 L 299, p. 32, convention as amended by the successive conventions relating to the accession of new Member States to that convention.

(8)  – I would point out that in the dispute in the main proceedings, it was actually an insurer subrogated to the rights of the sub-buyer who brought proceedings against the manufacturer; however, that legal situation is equivalent to one in which the action is brought by the sub-buyer itself.

(9)  – The reference for a preliminary ruling is made solely with regard to the provisions of Article 23 of Regulation No 44/2001, which are general in character. It does not relate to the special rules of that regulation relating to the clauses conferring jurisdiction which may be inserted into contracts which involve a weak party, namely those relating to insurance contracts (Articles 13 and 14), consumer contracts (Article 17) and employment contracts (Article 21).

(10)  – In that respect, see the extracts from the Opinion which Deputy Advocate General Chevalier provided to the Cour de cassation in the main proceedings, published in ‘ Transmission des clauses de compétence dans les chaînes communautaires de contrats: la CJUE va pouvoir trancher ’, JCP edition G, 2010, No 52, p. 2438, which states that ‘put into p erspective, the judgments in Handte and Russ [cited above] appear to allow for two analyses as regards the legal regime applicable to [the] transfer to the sub-buyer of a clause of jurisdiction in [such] a chain’ and which refers to the differing views taken by those involved in French legal theory.

(11)  – In point 18 et seq. of the Opinion he delivered on 8 April 1992 in Handte , cited above, Advocate General Jacobs pointed out that, at that time, the direct action of a sub-buyer against a manufacturer was classified as being contractual only in Belgium, France and Luxembourg.

(12)  – A Commission working document of 14 December 2010 entitled Summary of the impact assessment, Accompanying document to the Proposal for a regulation concerning the recast of Regulation No 44/2001 [SEC(2010) 1548 final, paragraph 2.3.1], states: ‘[t]he overwhelming majority of EU business involved in cross-border trade makes use of choice-of-court agreements (almost 70% of all companies and 90% of large companies)’.

(13)  – I would point out that this will however, change when The Hague Convention of Choice of Court Agreements concluded on 30 June 2005 (‘the 2005 Hague Convention’), the wording of which is available at www.hcch.net) comes into force, as it will then be a requirement for all the parties concerned to reside within the European Union in order for the provisions of Regulation No 44/2001 to take precedence over those of the Convention. The signing of that Convention on behalf of the European Community was approved by Council Decision 2009/397 of 26 February 2009 (OJ 2009 L 133, p. 1).

(14)  – As the agreement conferring jurisdiction may relate to ‘disputes which have arisen or which may arise’.

(15)  – This might be the case where a third party considers that extension of jurisdiction resulting from a clause conferring jurisdiction may be to its advantage, for example in the light of the previous decisions of the designated court or the applicable law according to the conflict-of-law rules of the Member State in which that court has its seat.

(16)  – Joined Cases C-509/09 and C-161/10 eDate Advertising and Martinez [2001] ECR I-10269, paragraph 39 and the case-law cited.

(17)  – The 2005 Hague Convention does not address such enforceability. In the Explanatory Report to that Convention, Hartley, T., and Dogauchi, M., lean towards the use of a confrontational approach (see paragraph 97: ‘[p]rovided the original parties consent to the choice-of-court agreement, the agreement may bind third parties who did not expressly consent to it, if their standing to bring the proceedings depends on their taking over the rights and obligations of one of the original parties. Whether that is the case will depend on national law’, as well as paragraphs 142, 143 and 294).

(18)  – See, in particular, point 44 of the Opinion I delivered in Case C-133/11 Folien Fischer and Fofitec , pending before the Court, and the case-law cited.

(19)  – Accordingly, classification of the concept of ‘agreement conferring jurisdiction’ which appears in Article 23 of that regulation may have an impact on the determination of its legal effect, as shown by the judgment in Case C-214/89 Powell Duffryn [1992] ECR I-1745, paragraph 11 et seq.).

(20)  – See point 18 et seq. of Advocate General Jacobs’ Opinion in Handte , cited above.

(21) – Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6). Article 1(2)(e) of that regulation excludes from its scope choice-of-court agreements.

(22)  – The law of the Member State in which the court seised has its seat, that of the Member State in which the court designated by the clause conferring jurisdiction has its seat, that applicable to the original contract containing that clause, or even that applicable to the contract concluded by the third party against whom the clause is relied upon (as proposed by the Spanish Government).

(23)  – See, by analogy, with regard to the Brussels Convention, Case C-51/97 Réunion européenne and Others [1998] ECR I-6511, paragraph 34 and the case-law cited.

(24)  – Case 12/76 [1976] ECR 1473.

(25)  – See the Commission proposal which led to the adoption of Regulation No 44/2001, which states that ‘[t]he alternative jurisdiction under Article 5(1) (contracts) has been reframed. The place of performance of the obligation underlying the claim will now be given an autonomous definition in two categories of situation: the sale of goods and the provision of services. This solution obviates the need for reference to the rules of private international law of the State whose courts are seised’ [COM (1999) 348 final, paragraph 4.2].

(26)  – Resolution 2009/2140(INI), cited above, recital O and paragraph 13.

(27)  – As the concept of ‘parties’ within the meaning of this provision is not defined therein, it could a priori be extended to cover either the parties to an agreement conferring jurisdiction, or the parties to the proceedings of which a court is seised.

(28)  – That is to say that the courts which, without such a clause, would have had jurisdiction under Regulation No 44/2001, are prohibited from giving a ruling, unless the parties have decided otherwise.

(29)  – The Court having ruled that the purpose of the formalism required by Article 17 of the Brussels Convention was to furnish proof of the voluntary agreement relating to the choice of a court. See Case C-106/95 MSG [1997] ECR I-911, paragraph 15 and the case-law cited).

(30)  – In Powell Duffryn , cited above, the clause conferring jurisdiction as contained in the statutes of a company was declared to be enforceable as against all shareholders, on the grounds that those statutes must be regarded as a contract and that by becoming a shareholder in a company, the shareholder had agreed to be subject to all the provisions appearing in those statutes, even if he did not agree with some of those provisions.

(31)  – The Court found that it was possible for the third-party beneficiary under an insurance policy concluded between an insurer and a policy-holder to avail itself of a clause of th at kind inserted into that contract even though it did not sign it itself (Case 201/82 Gerling Konzern Speziale Kreditversicherung and Others [1983] ECR 2503), but it precluded such a clause from being relied on against the third party beneficiary who had not agreed to it (Case C-112/03 Société financière et industrielle du Peloux [2005] ECR I-3707).

(32)  – See the summary in that regard in paragraph 23 of Russ , cited above.

(33)  – Article 13(2) of Regulation No 44/2001 expressly allows for a clause conferring jurisdiction to favour not only the policy-holder or the insured, but also the beneficiary of the insurance, even if that beneficiary is not a signatory to the contract.

(34)  – Similarly, I do not share the view of the German Government when it submits that Article 23(4) of Regulation No 44/2001 governs the effects of a clause conferring jurisdiction with regard to the settlor, trustee or beneficiary of a trust, without establishing whether or not they are original members or beneficiaries of the trust. It is my view that the subject of that text relates specifically to trusts and cannot be extended to relationships between manufacturers and sub-buyers.

(35)  – Accordingly, such a clause must not be worded in such a general manner as to include all possible disputes between the parties, irrespective of the contracts concluded by them.

(36) – See Handte , cited above, paragraph 17.

(37)  – See, inter alia, the recent judgment in Case C-154/11 Mahamdia [2012] ECR, paragraph 60 et seq.

(38)  – See Castelletti , cited above (paragraph 46 et seq. and the case-law cited), where it is pointed out that Article 17 of the Brussels Convention equivalent to Article 23 of the regulation dispenses with any objective connection between the relationship in dispute and the court designated.

(39) – It states that ‘[t]he rules of jurisdiction must be highly predictable …’

(40) – Case C-533/07 Falco Privatstiftung and Rabitsch [2009] ECR I-3327, paragraph 22 and the case-law cited.

(41)  – See, to that effect, paragraph 1.1 of the proposal for a regulation COM(1999) 348 final, cited above, in which the ‘legal certainty as regards jurisdiction’ is linked to the ‘sound operation of the internal market’.

(42)  – On the link between the autonomous definition of a ground for jurisdiction and the objectives of predictability and unification of the rules of jurisdiction, see, in particular, Case C-19/09 Wood Floor Solutions Andreas Domberger [2010] ECR I-2121, paragraph 23.

(43)  – Pursuant to the general rules of jurisdiction laid down in Section 1 of Chapter II of Regulation No 44/2001 or the rules of special jurisdiction provided for in the subsequent sections thereof.

(44)  – Recital 11 to that regulation states that ‘the principle that jurisdiction is generally based on the defendant’s domicile … must always be available on this ground save in a few well-defined situations in which … the autonomy of the parties warrants a different linking factor’ (emphasis added).

(45)  – See, with regard to Article 17 of the Brussels Convention, Case 24/76 Estasis Salotti di Colzani [1976] ECR 1831, paragraph 7, and Case 25/76 Galeries Segoura [1976] ECR 1851, paragraph 6.

(46)  – Case C-347/08 Vorarlberger Gebietskrankenkasse [2009] ECR I-8661, paragraph 39 and the case-law cited.

(47)  – Russ (paragraph 24 et seq.); Castelletti (paragraph 41 et seq.); and Coreck (paragraphs 23 to 27 and 30).

(48)  – See Estasis Salotti di Colzani and Galeries Segoura , cited above.

(49)  – The issue of the effects of the clause conferring jurisdiction vis-à-vis the insurer, subrogated in this instance to the rights of the third party rather than to a party to the original contract, is referred to by the national court only in the second question referred, but it could in fact be raised in the same terms for the first question referred. It seems clear to me that, where a subrogation has taken place in accordance with the applicable rules of law, the insurer who has compensated the sub-buyer has replaced the latter such that it may, as a rule, exercise all the rights belonging to that sub-buyer as against the person who may be liable for the insured event, under the same conditions, in particular with regard to the rules of jurisdiction.

(50)  – I note that in its Resolution 2009/2140(INI), referred to above, the Parliament refers expressly to the case of third parties who may be bound by a clause conferring jurisdiction contained in bills of lading and proposes adopting a substantive rule specifically in that regard, undoubtedly in view of the specific nature thereof.

(51)  – ‘Is the clause conferring jurisdiction effective as against the sub-buyer and its subrogated insurers even if …?’ (emphasis added).

(52)  – See, in particular, paragraph 16 et seq.

(53)  – That concept covers all actions which seek to establish the liability of a defendant and are not related to matters of contract. See, by analogy, with regard to the action by which a consignee of goods challenged a person which he held to be the actual carrier, Réunion européenne and Others , cited above (paragraph 22 and the case-law cited).

(54)  – Bearing in mind that such an obligation is the criterion for classification which the Court has repeatedly applied to define autonomously the concept of ‘matters relating to a contract’ within the meaning of Article 5(1) of the Brussels Convention and therefore of Regulation No 44/2001. See judgment in Case C-27/02 Engler [2005] ECR I-481, paragraph 50 and the case-law cited.