Case C‑47/14

Holterman Ferho Exploitatie BV and Others

v

Friedrich Leopold Freiherr Spies von Büllesheim

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation (EC) No 44/2001 — Article 5(1) — Jurisdiction in matters relating to a contract — Article 5(3) — Jurisdiction in matters relating to tort or delict — Articles 18 to 21 — Individual employment contract — Company director’s contract — Termination of the contract — Grounds — Poor performance and wrongful conduct — Action for a declaratory judgment and for damages — Meaning of ‘individual contract of employment’’

Summary — Judgment of the Court (Third Chamber), 10 September 2015

1. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Action for damages based on a number of counts capable of falling within a number of rules on jurisdiction — Court having jurisdiction on the basis of non-compliance with obligations arising out of the provisions relied on

   (Council Regulation No 44/2001, Art. 5(1) and (3), and 18 to 21)

2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Jurisdiction in matters relating to individual employment contracts — Action for damages brought by a company against a person who is both an employee and a manager of that company — Included — Conditions

   (Council Regulation No 44/2001, Art. 5(1) and (3), and 18 to 21)

3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Legal concepts — Independent interpretation

   (Council Regulation No 44/2001)

4. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Provisions of that regulation regarded as equivalent to those of the Brussels Convention — Interpretation of those provisions in accordance with the case-law of the Court on the convention

   (Convention of 27 September 1968; Council Regulation No 44/2001)

5. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in matters relating to a contract for the purposes of Article 5(1)(b) — Provision of services — Meaning — Determination of the characteristic obligation — Legal relationship between a manager of a company and the company — Included — Condition

   (Council Regulation No 44/2001, Art. 5(1)(b))

6. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Meaning of matters relating to a contract — Action for damages against a manager for breach of his obligations under company law — Included — Determination of the place of performance of the contractual obligation — Place in which his activity is actually carried on and the services are mainly provided

   (Council Regulation No 44/2001, Art. 5(1)(b), second indent)

7. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Meaning — Action for damages in matters not relating to a contract

   (Council Regulation No 44/2001, Art. 5(1)(a) and (3))

8. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Meaning — Determination of the place of the event giving rise to the damage — Place where the damage occurred and the place of the event giving rise to the damage

   (Council Regulation No 44/2001, Art. 5(3))

1.  When a national court, hearing an appeal alleging the liability of a person, both in his capacity as director and as manager of a company, and on the basis of tort or delict, is asking the Court for an interpretation of the provisions of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, concerning, respectively, jurisdiction in relation to individual contracts of employment for the purposes of Chapter II, Section 5, Articles 18 to 21, of Regulation No 44/2001, contracts for the purposes of Article 5(1) of that regulation and tort, delict or quasi-delict for the purposes of Article 5(3) of that regulation, the mere fact that the applicant sets out several claims for liability in his application is not sufficient for such an action to be considered capable of coming within the scope of each of the provisions relied on. That is the case only where the conduct complained of may be considered a breach of the obligations resulting from those provisions, which is for the referring court to verify.

   (see paras 31, 32)

2.  In a situation in which a company sues a person who performed the duties of director and manager of that company in order to establish misconduct on the part of that person in the performance of his duties and to obtain redress from him, the provisions of Chapter II, Section 5 (Articles 18 to 21) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude the application of Article 5(1) and (3) of that regulation, provided that that person, in his capacity as director and manager, for a certain period of time performed services for and under the direction of that company in return for which he received remuneration, that being a matter for the national court to determine. The issue of the application of the special rules for determining jurisdiction, laid down in that section of Regulation No 44/2001, arises only if that person can be considered to be bound, through an individual contract of employment for the purposes of Article 18(1) of that regulation, to the company of which he was a director and manager, and could thus be classified as a worker for the purposes of Article 18(2).

   More specifically, with regard to the relationship of subordination, the issue whether such a relationship exists must be assessed on the basis of all the factors and circumstances characterising the relationship between the parties.

   Moreover, it is for the national court to examine the extent to which the defendant, in his capacity as a shareholder in the applicant company, was able to influence the will of that company’s administrative body of which he was the manager. In that case, it will be necessary to establish who had authority to issue him with instructions and to monitor their implementation. If it were to turn out that the defendant’s ability to influence that body was not negligible, it would be appropriate to conclude that there was no relationship of subordination for the purposes of the Court’s case-law on the definition of a worker.

   (see para. 34, 46-49, operative part 1)

3.  See the text of the decision.

   (see para. 37)

4.  See the text of the decision.

   (see para. 38)

5.  A contract which has as its characteristic obligation the provision of services is classified as a provision of services within the meaning of the second indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It follows that, in the context of company law, since the characteristic obligation of the legal relationship between the manager and the company being managed requires a particular activity in return for remuneration, that activity must be classified as a provision of services within the meaning of the second indent of Article 5(1)(b) of Regulation No 44/2001.

   (see paras 57, 58)

6.  Article 5(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action brought by a company against its former manager on the basis of an alleged breach of his obligations under company law comes within the concept of matters relating to a contract. In the absence of any derogating stipulation in the articles of association of the company, or in any other document, it is for the referring court to determine the place where the manager in fact, for the most part, carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as indicated by what was agreed. For that purpose, it is possible to take into consideration, in particular, the time spent in those places and the importance of the activities carried out there.

   (see paras 63-65, operative part 2)

7.  See the text of the decision.

   (see paras 68, 70)

8.  Where a company is suing its former manager on the basis of allegedly wrongful conduct, Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that that action is a matter relating to tort or delict where the conduct complained of may not be considered to be a breach of the manager’s obligations under company law, that being a matter for the referring court to verify. It is for the referring court to identify, on the basis of the facts of the case, the closest linking factor between the place of the event giving rise to the damage and the place where the damage occurred.

   In matters relating to tort, delict or quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence.

   As far as the place of the event giving rise to the damage is concerned, it is necessary to bear in mind that that place may be situated in the place where the manager’s duties were carried out. With regard to the place where the damage occurred, that is the place where the damage alleged by the company actually manifests itself.

   (see paras 73, 74, 76, 77, 79, operative part 3)