Conclusions
OPINION OF ADVOCATE GENERAL
JACOBS
delivered on 18 September 2003(1)
Case C-18/02
Danmarks Rederiforening, acting on behalf of DFDS Torline A/S
v
LO Landsorganisationen i Sverige, representing SEKO Sjöfolk, Facket för Service och Kommunikation
()
1. In this case the Arbejdsret (Labour Court), Denmark, has referred a series of questions on Article 5(3) of the Brussels Convention
on jurisdiction and the enforcement of judgments in civil and commercial matters.
(2)
That provision, in derogation from the general rule established by the Convention that the courts of the defendant's domicile
have jurisdiction, confers jurisdiction ‘in matters relating to tort, delict or quasi-delict [on] the courts for the place
where the harmful event occurred'.
The relevant instruments
2. The first paragraph of Article 2 of the Convention states:‘Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality,
be sued in the courts of that State.'
3. Article 5 provides, in so far as relevant:‘A person domiciled in a Contracting State may, in another Contracting State, be sued:…
3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred;…'
4. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters
(3)
was adopted under Articles 61(c) and 67(1) EC. The Regulation came into force on 1 March 2002 and replaces the Convention
as between most Contracting States. Denmark however is not bound by the Regulation or subject to its application.
(4)
5. Article 5 of the Regulation provides in so far as relevant:‘A person domiciled in a Member State may, in another Member State, be sued:…
3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
…'
6. Article 2 of the Protocol on the interpretation of the Brussels Convention by the Court of Justice
(5)
provides in so far as relevant:‘The following courts may request the Court of Justice to give preliminary rulings on questions of interpretation:
(1) …
─
in Denmark:
højesteret [Supreme Court],
…;
(2) the courts of the Contracting States when they are sitting in an appellate capacity …'
The main proceedings
7. The main proceedings concern the legality of industrial action called by SEKO Sjöfolk Facket för Service och Kommunikation
(the Swedish union representing maritime workers in service and communications sectors, ‘SEKO') against the Danish shipowner
DFDS Torline A/S (‘DFDS') with the objective of securing a collective agreement for the Polish crew of the cargo ship
Tor Caledonia, owned by DFDS and serving the route between Göteborg (Sweden) and Harwich (United Kingdom).
8. The
Tor Caledonia is registered in the Danish international ship register and thereby subject to Danish law. Working on board at the material
time were Danish officers and Polish sailors. The Polish crew were employed on the basis of individual contracts in accordance
with a framework agreement between a number of Danish trade unions on the one hand and three Danish associations of shipping
companies on the other. Those contracts were governed by Danish law.
9. On 7 March 2001 SEKO requested a collective agreement for the Polish crew on board the
Tor Caledonia. On 9 March 2001 Danmarks Rederiforening (the Danish Association of Shipping Companies) acting on behalf of DFDS rejected
that request. Swedish legislation confers a right on Swedish trade unions to initiate disputes against vessels sailing under
foreign flags.
(6)
By fax sent on 21 March 2001 SEKO served notice of limited industrial action with effect from 28 March, instructing its
Swedish members not to accept employment on the
Tor Caledonia. That fax also stated that SEKO was calling for sympathy action, namely industrial action by other trade unions in support
of SEKO's principal action.
10. SEKO's proposed industrial action would have had no effect on DFDS without sympathy action since that company neither employed
nor intended to employ Swedish crew on the
Tor Caledonia. However on 3 April 2001 Svenska Transportarbetareforbundet (the Swedish transport workers union, ‘STAF') gave notice of
sympathy action with effect from 17 April 2001 in the form of refusing to engage in any work whatsoever relating to the
Tor Caledonia, which would prevent the ship from being moored, loaded or unloaded in Göteborg. It is clear from the wording of that notice
that the sympathy action was in response to SEKO's request.
11. It appears from the order for reference that under Danish law
(7)
the Arbejdsret has exclusive jurisdiction to rule on the legality of recourse to industrial action in support of a request
for a collective agreement in sectors where no such agreement has yet been concluded. In contrast it is for the ordinary
courts to rule on claims for damages for losses due to industrial action or notice thereof in sectors which are not covered
by an agreement; those courts cannot however rule on the legality of such action.
12. On 4 April 2001 the Danmarks Rederiforening acting on behalf of DFDS (hereafter together referred to as DFDS) brought proceedings
before the Arbejdsret against LO Landsorganisationen I Sverige (the Swedish Congress of Trade Unions, ‘LO'), representing
SEKO and STAF, seeking an order that the two unions acknowledge that the notified principal and sympathy actions were unlawful
and withdraw the notices.
13. At a preliminary hearing before the Arbejdsret on 11 April 2001 SEKO agreed to suspend its notified action pending the decision
of the Arbejdsret. SEKO had no authority however to suspend the sympathy action.
14. On 16 April 2001 DFDS decided to withdraw the
Tor Caledonia from the Göteborg-Harwich line because of the risk that the ship might not be able to maintain uninterrupted operations.
It subsequently replaced that ship with another leased for the purpose.
15. On 18 April 2001 STAF suspended the call for sympathy action. DFDS thereupon discontinued the proceedings in so far as they
related to STAF.
16. On 7 January 2002 DFDS brought an action for damages against SEKO before the Sø- og Handelsret (Maritime and Commercial Court),
Copenhagen. The damages sought are for the loss suffered by DFDS as a result of immobilising the
Tor Caledonia and leasing a replacement ship; they are apparently estimated at some EUR 60 000. Those proceedings have been stayed pending
judgment in the case before the Arbejdsret since the question whether the notified industrial action was legal may determine
the outcome.
17. In the proceedings before the Arbejdsret SEKO represented by LO (hereafter together referred to as SEKO) submits that that
court has no jurisdiction. It argues in particular that the derogation in Article 5(3) of the Brussels Convention is inapplicable
since DFDS has not brought any claim for compensation. Moreover since SEKO will have to revoke its notice of industrial action
if the Arbejdsret rules that that action would be unlawful there will be no basis for a subsequent claim for compensation.
SEKO accepts that there is a risk that a lawful collective dispute will generate unlawful sympathy action which may result
in damage and give rise to claims for compensation but considers that the mere fact of such a risk does not mean that a case
which is to address solely the legality of the principal dispute is a matter ‘relating to tort, delict or quasi-delict' within
the meaning of Article 5(3) of the Convention. SEKO concludes that proceedings against it concerning its notice of industrial
action fall under the main rule in Article 2 of the Convention and should therefore have been brought before the Swedish courts.
18. The Arbejdsret has accordingly referred the following questions to the Court:‘
Question 1:
(a) Must Article 5(3) of the Convention be construed as covering cases concerning the legality of collective industrial action
for the purpose of securing an agreement in a case where any harm which may result from the illegality of such collective
action gives rise to liability to pay compensation under the rules on tort, delict or quasi-delict, so that a case concerning
the legality of notified collective industrial action can be brought before the courts of the place where proceedings may
be instituted for compensation in respect of any harm resulting from that industrial action?
(b) Is it necessary, as the case may be, that any harm incurred must be a certain or probable consequence of the industrial action
concerned in itself, or is it sufficient that that industrial action is a necessary condition governing, and may constitute
the basis for, sympathy actions which will result in harm?
(c) Does it make any difference that implementation of notified collective industrial action was, after the proceedings had been
brought, suspended by the notifying party until the court's ruling on the issue of its legality?
Question 2:Must Article 5(3) of the Convention be construed as meaning that damage resulting from collective industrial action implemented
by a trade union in a country to which a vessel registered in another country (the flag State) sails for the purpose of securing
an agreement covering the work of seamen on board that vessel can be regarded by the vessel's owners as having occurred in
the flag State, with the result that the vessel's owners can, pursuant to Article 5(3), bring an action for damages against
the trade union in the flag State?'
19. Written observations have been presented by DFDS, SEKO, the Danish, Swedish and United Kingdom Governments and the Commission,
all of whom except for the United Kingdom were represented at the hearing.
The jurisdiction of the Arbejdsret to make the reference
20. The question arises, as the United Kingdom points out, whether the Arbejdsret has jurisdiction to request a preliminary ruling
from the Court. Under the Protocol on the interpretation of the Convention by the Court,
(8)
requests for preliminary rulings may be made by courts listed in Article 2(1), which do not include the Arbejdsret, and courts
‘sitting in an appellate capacity' within the meaning of Article 2(2).
21. It appears from the order for reference that in accordance with Danish law
(9)
the Arbejdsret is the only court with jurisdiction to deal with cases concerning the legality of notified collective industrial
action. The Danish Government adds that the Arbejdsret is a court of first and last instance; its decisions are accordingly
not susceptible to appeal. In the order for reference the Arbejdsret states that it must therefore be regarded as having
the same status as an appellate court.
22. The exclusion of courts of first instance from the list of courts entitled to request preliminary rulings was explained by
Jenard
(10)
as ‘designed mainly to prevent the interpretation of the Court being requested in too many cases, and particularly in trivial
matters'.
23. That rationale is clearly understandable in the case of courts of first instance whose decisions are susceptible to appeal
to higher courts. Where however, as in the present case, the national court is sitting both at first and last instance, there
can be no compelling justification for denying the court the possibility of requesting a preliminary ruling from the Court
of Justice.
24. To do so would moreover, as the Danish Government submits, mean that questions concerning the interpretation of the Convention
in certain labour law contexts could never be put to the Court. That cannot have been the intention of the authors of the
Convention and the Protocol.
25. It may in addition be noted that Schlosser
(11)
was of the view that the expression ‘appellate capacity' in Article 2(2) of the Protocol ‘should not be construed in a narrow
technical sense, but in the sense of any challenge before a higher jurisdiction', which suggests that the expression encompasses
any court whose decisions are final.
26. That interpretation is also consistent with the provisions of Regulation No 44/2001
(12)
governing requests for interpretation. In accordance with Article 68(1) EC, such requests are to be made by way of a reference
for a preliminary ruling pursuant to Article 234 EC subject to the condition that only courts or tribunals ‘against whose
decisions there is no judicial remedy under national law' may request a ruling. The Arbejdsret would clearly fall within
that definition.
27. I am accordingly of the view that the Arbejdsret has jurisdiction under the Protocol on the interpretation of the Convention
to request a preliminary ruling from the Court of Justice.
Question 1(a)
28. By question 1(a) the Arbejdsret is essentially asking whether proceedings before one court seeking a declaration that notified
industrial action is unlawful as an essential precursor to an action for damages to be brought before another court fall within
the scope of ‘matters relating to tort, delict or quasi-delict' within the meaning of Article 5(3) of the Convention.
29. I consider that that question should be answered in the affirmative, as do DFDS, the Danish and United Kingdom Governments
and the Commission. SEKO and the Swedish Government on the other hand submit that the question should be answered in the
negative.
30. To my mind the latter view runs counter to the wording, scheme and objectives of the Convention as interpreted by the Court.
31. As the Commission points out, the language of Article 5(3), in particular in the German
(13)
and English versions, is broad, suggesting that in order to fall within the provision an action must simply
relate to tort, delict or quasi-delict. The case-law also suggests that the concept should be generously interpreted. In
Mines de Potasse d'Alsace,
(14)
its first decision on Article 5(3), the Court stated that ‘by its comprehensive form of words, Article 5(3) of the Convention
covers a wide diversity of kinds of liability'. Subsequently in
Kalfelis
(15)
the Court explained that ‘the concept of “matters relating to tort, delict and quasi-delict” covers all actions which seek
to establish the liability of a defendant and which are not related to a “contract” within the meaning of Article 5(1)'.
32. That definition seems designed to cover proceedings such as those described by the referring court in question 1(a), namely
proceedings concerning the legality of industrial action ‘where any harm which may result from the illegality of such … action
gives rise to liability to pay compensation under the rules on tort, delict or quasi-delict'.
(16)
33. SEKO however submits that the proceedings before the Arbejdsret have no connection with the concept of ‘matters relating to
tort, delict or quasi-delict' within the meaning of Article 5(3) since DFDS bases its claim not on the rules concerning tortious
liability but solely on the alleged unlawfulness of the notice of industrial action. There is no claim for payment, for example
of damages, before the Arbejdsret, which in any event has no jurisdiction to hear such a claim.
34. I do not accept that argument.
35. First, as the Danish and United Kingdom Governments in particular point out, the Convention has not harmonised the domestic
rules of procedure of the Contracting States,
(17)
which remain competent to determine the manner in which claims for compensation for loss arising from tortious liability
are brought. It appears from the order for reference that Denmark has conferred exclusive jurisdiction on the Arbejdsret
to determine the lawfulness of industrial action while the ordinary courts alone have jurisdiction to adjudicate claims for
consequential damage. In that context it is clearly artificial to regard the two types of proceedings as distinct for the
purpose of Article 5(3).
36. Second, such an interpretation would mean that in a case such as that at issue a claimant wishing to bring proceedings before
the courts for the place where the harmful event occurred to establish liability for damage arising from illegal action may
not be able to do so until he had brought proceedings before the courts of another Contracting State to establish the illegality
of the action. Such a result would manifestly not be in the interests of procedural economy or the sound administration of
justice. Moreover the right to bring proceedings to establish the illegality of industrial action may not be recognised in
some Contracting States; the intended claimant may therefore in such circumstances be unable to bring proceedings before
the courts for the place where the harmful event occurred to establish liability for consequential damage.
37. Finally, it is now clear from the Court's judgment in
Henkel,
(18)
delivered after the reference was made and the observations lodged in the present case, that Article 5(3) may apply to proceedings
which do not include a claim for payment. The question at issue in that case was essentially whether an action brought by
a consumer protection organisation seeking an injunction to prevent a trader from using terms considered to be unfair in contracts
with private individuals was a matter relating to a contract within the meaning of Article 5(1) of the Convention or a matter
relating to tort, delict or quasi-delict within the meaning of Article 5(3). The Court stated that such an action sought
to establish the liability of the defendant in tort, delict or quasi-delict ‘in respect of the trader's non-contractual obligation
to refrain in his dealings with consumers from certain behaviour deemed unacceptable by the legislature'.
(19)
38. The Court went on to explain that the concept of ‘harmful event' within the meaning of Article 5(3) is broad in scope so that,
with regard to consumer protection, it covers not only situations where an individual has personally sustained damage but
also the undermining of legal stability by the use of unfair terms which it is the task of associations such as the applicant
association to prevent.
(20)
39. In the present case, the action brought by the applicant is clearly analogous to the action at issue in
Henkel in that it seeks to establish the liability of SEKO in tort, delict or quasi-delict in respect of its non-contractual obligation
to refrain from certain behaviour deemed unacceptable by the legislature. Moreover, as the Commission points out and as is
clear from the wording of question 1(b), the action brought by DFDS is, unlike that at issue in
Henkel, directly linked to SEKO's potential liability in damages since the finding of illegality sought in the first action is a
precondition to a determination of that liability in the separate action pending before the Sø- og Handelsret, Copenhagen.
40. More generally, the Court in
Henkel stated:‘The rule of special jurisdiction laid down in Article 5(3) of the Brussels Convention is based on the existence of a particularly
close connecting factor between a dispute and the courts for the place where the harmful event occurred, which justifies the
attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious
conduct of proceedings ... The courts for the place where the harmful event occurred are usually the most appropriate for
deciding the case, in particular on the grounds of proximity and ease of taking evidence. Those considerations are equally
relevant whether the dispute concerns compensation for damage which has already occurred or relates to an action to prevent
the occurrence of damage.'
(21)
41. To my mind, all those considerations apply equally to a case such as that at issue in the main proceedings, where national
rules on the allocation of jurisdiction require that, before an action for damages flowing from a party's conduct may be brought
in one court, a declaration that that conduct is unlawful must be obtained in another court.
42. I accordingly conclude in answer to question 1(a) that where in accordance with the law of a Contracting State a court of
that State has exclusive jurisdiction to rule on the illegality of industrial action and another court of that State has jurisdiction
to hear claims for compensation for damage caused by such illegality, proceedings before the first court seeking a declaration
that industrial action is unlawful fall within the scope of ‘matters relating to tort, delict or quasi-delict' within the
meaning of Article 5(3) of the Convention.
Question 1(b)
43. By question 1(b) the Arbejdsret asks whether it is necessary for the application of Article 5(3) in circumstances such as
those at issue that any harm incurred be a certain or probable consequence of the industrial action concerned or whether it
is sufficient that that industrial action is a necessary condition governing, and may constitute the basis for, sympathy actions
which will result in harm.
44. The question arises because the principal industrial action notified by SEKO would not in itself cause harm to DFDS. The
sympathy action notified by STAF in response to SEKO's request, however, would cause such harm. The notion of sympathy action
pre-supposes principal industrial action. Moreover the order for reference states that as a matter of both Danish and Swedish
law there must be a dispute which has the purpose of securing a collective agreement before other trade union organisations
may notify sympathy disputes.
45. Only SEKO considers that it is necessary that any harm incurred must be a certain or probable consequence of the industrial
action concerned. SEKO advances two arguments in support of that view.
46. First, SEKO considers that Article 5(3) will apply only where there is actual damage resulting in financial loss which is
the subject of a claim for compensation.
47. It is clear however from the case-law of the Court that it is not necessary for the purpose of Article 5(3) to show actual
damage resulting in financial loss.
(22)
Moreover it is manifestly impossible to demonstrate such damage where the proceedings at issue seek an order preventing
the impugned conduct; such proceedings may none the less, as explained above, be ‘matters relating to tort, delict or quasi-delict'
within the meaning of Article 5(3).
(23)
That may also, depending on the circumstances, be so in the case of proceedings seeking a declaration that certain conduct,
suspended pending judgment, is illegal, such as the proceedings before the Arbejdsret in the present case.
48. More generally, SEKO submits that the mere fact that there is always a risk that industrial action may lead to unlawful sympathy
action giving rise to entitlement to damages does not mean that proceedings addressing solely the legality of the principal
action are a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3).
49. I have already explained in the context of question 1(a) why I consider that, in the circumstances of the present case, namely
where the proceedings concerning the legality of the principal action are an essential precursor to separate proceedings for
damages for harm resulting from that action, the first proceedings are a matter relating to tort, delict or quasi-delict within
the meaning of Article 5(3). In its submissions on question 1(b), SEKO is essentially arguing that the first proceedings
cannot in any event be a matter relating to tort, delict or quasi-delict if it is neither certain nor probable that harm will
directly result from the principal action.
50. That argument raises the question how far the court first seised of proceedings on the basis of Article 5(3) must go into
the merits of the case in order to determine whether it has jurisdiction in accordance with that provision.
51. The Court of Justice has stated that it is consonant with the Convention's aim of legal certainty that the court seised should
be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider
the substance of the case.
(24)
In particular the Convention does not specify the circumstances in which the event giving rise to the harm may be considered
to be harmful to the victim or the evidence which the claimant must adduce before the court seised to enable it to rule on
the merits of the case.
(25)
Those are matters of the applicable national law, to be determined by the court which in accordance with the Convention
has jurisdiction to decide the case.
52. None the less it is clear that there may be circumstances in which the court first seised will be required to make at least
a preliminary assessment of the merits in order to determine whether the case before it is a matter ‘relating to tort, delict
or quasi-delict' within the meaning of Article 5(3). Otherwise a defendant could, simply by pleading that there was no consequential
harm to the claimant and hence no tort, delict or quasi-delict, oust the jurisdiction of the court seised.
53. In the analogous context of Article 5(1) of the Convention, which confers jurisdiction in matters relating to a contract on
the courts of the place of performance of the obligation in question, the Court has stated that ‘the national court's jurisdiction
to determine questions relating to a contract includes the power to consider the existence of the constituent parts of the
contract itself, since that is indispensable in order to enable the national court in which proceedings are brought to examine
whether it has jurisdiction under the Convention. If that were not the case, Article 5(1) … would be in danger of being deprived
of its legal effect, since it would be accepted that, in order to defeat the rule contained in that provision, it is sufficient
for one of the parties to claim that the contract does not exist. On the contrary, respect for the aims and spirit of the
Convention demands that that provision should be construed as meaning that the court called upon to decide a dispute arising
out of a contract may examine, of its own motion even, the essential preconditions for its jurisdiction, having regard to
conclusive and relevant evidence adduced by the party concerned, establishing the existence or the inexistence of the contract.'
(26)
54. That approach moreover reflects the first paragraph of Article 20 of the Convention, which provides that, where a defendant
domiciled in one Contracting State is sued in a court of another Contracting State and does not enter an appearance (other
than solely to contest the jurisdiction
(27)
), ‘the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions
of the Convention'. According to Jenard, ‘Article 20 is one of the most important articles in the Convention: … the court
must of its own motion examine whether it has jurisdiction under the Convention. … It is not sufficient for the court to
accept the submissions of the plaintiff as regards jurisdiction; the court must itself ensure that the plaintiff proves that
it has international jurisdiction.'
(28)
55. With regard to the standard of proof required, the Court was asked in
Shevill
(29)
whether the court seised, in determining whether it has jurisdiction as the court of the place where the damage occurred
pursuant to Article 5(3), is required to follow specific rules different from those laid down by its national law in relation
to the criteria for assessing whether the event in question is harmful and in relation to the evidence required of the existence
and extent of the harm alleged by the victim. The Court ruled that those questions must be settled solely by the national
court seised, applying the substantive law determined by its national conflict of laws rules, provided that the effectiveness
of the Convention is not thereby impaired.
56. The effectiveness of the Convention may however be impaired if jurisdiction over a matter relating to tort, delict or quasi-delict
is conferred on the courts for the place where harm which was wholly unforeseeable occurred. The objective of the Convention
is to provide a clear and certain attribution of jurisdiction.
(30)
With particular reference to Article 5(3), the Court has rejected an interpretation of the Convention which would make the
determination of the competent court depend on uncertain factors
(31)
and has stated that ‘the jurisdictional rules which derogate from the general principle of the Convention should be interpreted
in such a way as to enable a normally well-informed defendant reasonably to predict before which courts, other than those
of the State in which he is domiciled, he may be sued'.
(32)
That will clearly not be the case if a defendant may be sued in the courts for the place where wholly unforeseeable damage
resulted from the tortious act in question.
57. The terms of question 1(b) suggest however that that is not the case here, since the national court describes the principal
industrial action as a necessary condition which governs and may constitute the basis for sympathy actions which will result
in harm. Moreover SEKO accepts that there is a risk that any industrial action may lead to unlawful sympathy action. It
seems therefore that any harm caused by sympathy action cannot be described as an unforeseeable consequence of the principal
action.
58. I accordingly consider that question 1(b) should be answered to the effect that where in accordance with the law of a Contracting
State a court of that State has exclusive jurisdiction to rule on the illegality of industrial action and another court of
that State has jurisdiction to hear claims for compensation for damage caused by such illegality, proceedings before the first
court seeking a declaration that industrial action is unlawful fall within the scope of ‘matters relating to tort, delict
or quasi-delict' within the meaning of Article 5(3) even where the industrial action whose illegality those proceedings seek
to have established may not directly cause harm to the claimant, provided that the principal industrial action is a necessary
condition governing, and may constitute the basis for, sympathy actions which will result in such harm.
Question 1(c)
59. By question 1(c) the Arbejdsret asks whether the fact that implementation of notified collective industrial action was, after
the proceedings had been brought, suspended by the notifying party until the referring court's ruling on the issue of its
legality affects the application of Article 5(3) in circumstances such as those of the present case.
60. DFDS, the Danish and United Kingdom Governments and the Commission consider that that question should be answered in the negative;
SEKO in contrast submits that suspension of the action in those circumstances takes the proceedings outside the scope of
Article 5(3).
61. In particular SEKO argues that the fact that it was possible for DFDS to have the dispute suspended before the date on which
it was to enter into force, and that it did so, demonstrates that the present case does not involve compensation but is designed
to define the parameters of what constitutes a lawful dispute. It considers that that is also demonstrated by the fact that
DFDS has indicated that the decision to withdraw the vessel from the route was taken only after the dispute had been suspended
at the hearing on 11 April 2001. If DFDS is successful, the dispute will not be implemented, and no damage or entitlement
to compensation can therefore arise. Should the Arbejdsret rule in favour of SEKO, on the other hand, the notice of dispute
and the dispute will both have been lawful ab initio, and there can therefore be no basis for any entitlement to compensation.
SEKO concludes that the fact that the dispute has been suspended until the Arbejdsret rules on its legality deprives the
proceedings of any compensatory nature they might have had.
62. As a preliminary point I would note that, as discussed in the context of questions 1(a) and 1(b), the mere fact that proceedings
do not seek compensation is not sufficient to preclude the application of Article 5(3); to the extent that SEKO's argument
is based on the contrary assumption it is not correct.
63. Underlying the referring court's specific enquiry however is a more general question, namely whether events after proceedings
have been brought can affect the attribution of jurisdiction in accordance with the Convention. I consider that that question
must be answered in the negative.
64. As indicated above,
(33)
the objective of the Convention is to provide a clear and certain attribution of jurisdiction;
(34)
moreover ‘the jurisdictional rules which derogate from the general principle of the Convention should be interpreted in
such a way as to enable a normally well-informed defendant reasonably to predict before which courts, other than those of
the State in which he is domiciled, he may be sued'.
(35)
It would clearly undermine such legal certainty if a court which had jurisdiction in accordance with the Convention when
proceedings were brought could be deprived of such jurisdiction as a result of the defendant's conduct thereafter.
65. Of course such conduct may affect liability or quantum of damages when the case comes to judgment; that again, however, is
a matter of substantive law to be determined by the court with jurisdiction in accordance with the Convention.
66. I accordingly consider that question 1(c) should be answered to the effect that where in accordance with the law of a Contracting
State a court of that State has exclusive jurisdiction to rule on the illegality of industrial action and another court of
that State has jurisdiction to hear claims for compensation for damage caused by such illegality, proceedings before the first
court seeking a declaration that industrial action is unlawful fall within the scope of ‘matters relating to tort, delict
or quasi-delict' within the meaning of Article 5(3) even where implementation of that action is, after the proceedings have
been brought, suspended by the notifying party until the court seised has ruled on the issue of its legality.
Question 2
67. In essence, question 2 asks whether, in the circumstances which gave rise to the main proceedings, the damage can be regarded
as having occurred in Denmark so that proceedings may be brought there. Although the national court's question is couched
in terms of collective industrial action which was
implemented, I am assuming that that term was used in the sense of notified rather than actually carried out.
68. DFDS and the Danish Government submit that question 2 should be answered in the affirmative; SEKO and the Commission take
the contrary view. The United Kingdom considers that the question must be answered on the basis of the applicable national
law determined in accordance with Danish rules of private international law.
69.
In
Mines de Potasse d'Alsace
(36)
the Court ruled that ‘the meaning of the expression “place where the harmful event occurred” in Article 5(3) must be established
in such a way as to acknowledge that the plaintiff has an option to commence proceedings either at the place where the damage
occurred or the place of the event giving rise to it'. The Court explained that both those places could constitute a significant
connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly
helpful in relation to the evidence and the conduct of the proceedings, and that to decide in favour only of the place of
the event giving rise to the damage would, in an appreciable number of cases, cause confusion between the heads of jurisdiction
laid down by Articles 2 and 5(3) of the Convention, so that the latter provision would, to that extent, lose its effectiveness.
(37)
70. The Court stated in
Shevill
(38)
that, in the case of a libel by a newspaper article distributed in several Contracting States, the place of the event giving
rise to the damage can only be the place where the publisher of the newspaper in question is established, since that is the
place where the harmful event originated and from which the libel was issued and put into circulation.
71. In the present case, the event giving rise to the damage is clearly the notification of industrial action. By analogy with
Shevill, that event must be regarded as originating in Sweden, where the notifications were issued and sent.
72. With regard to the place where the damage occurred, guidance as to which is in particular sought by the Arbejdsret, the Court
stated in
Shevill that that place is the place where the event giving rise to the damage, entailing tortious, delictual or quasi-delictual
liability, produced its harmful effects upon the victim and that, in the case of an international libel through the press,
the injury caused to the honour, reputation and good name of a natural or legal person occurs in the places where the publication
is distributed, when the victim is known in those places.
(39)
73. In the present case, by analogy, the place where the damage occurred must be the place where the notices of industrial action
─ the events giving rise to the damage ─ produced their harmful effects. The principal harmful effects in respect of which
it appears that the applicant is seeking compensation in the proceedings before the Sø- og Handelsret were the withdrawal
from service of the
Tor Caledonia and the leasing of the replacement vessel which DFDS considered to be necessary in the light of the notices of industrial
action. Those effects would appear to have been produced in Denmark, although as the United Kingdom submits it is ultimately
for the national court to make the appropriate findings of fact in order to determine where the event giving rise to the damage
actually produced its harmful effects.
(40)
74. SEKO and the Commission argue however, on the basis of
Marinari,
(41)
that the term ‘place where the harmful event occurred' does not cover the place where the victim claims to have suffered
financial damage following upon initial damage arising and suffered by him in another State. Those parties conclude that
in the circumstances of the present case the place where the harmful event occurred cannot therefore be Denmark but must be
Sweden.
75.
In
Marinari the claimant brought proceedings in respect of losses allegedly caused by the conduct of the defendant bank. In that case
both the causal event (the conduct imputed to the employees of the defendant bank) and the initial damage (sequestration of
promissory notes lodged by Mr Marinari and Mr Marinari's subsequent imprisonment) occurred in one State; only the alleged
consequential damage (financial losses) could have been suffered in another State. The Court ruled that the term ‘place where
the harmful event occurred' cannot be construed so extensively as to encompass any place where the adverse consequences can
be felt of an event which has already caused damage actually arising elsewhere; consequently, the term cannot include the
place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him
in another Contracting State.
(42)
76.
Marinari will not therefore be applicable if all the damage occurs in one Contracting State. It is for the national court to assess
whether that is so in the present case.
77. DFDS in part bases its conclusion that the place where the damage occurred was Denmark on the argument that the object of
the proposed industrial action was to change the conditions of employment on board the
Tor Caledonia, which is registered in Denmark and is hence to be regarded as Danish territory. The Danish Government also considers it
relevant that the event giving rise to the damage was intended to produce its effects and influence the other party's conduct
where the ship affected by the action is registered and where the important decisions concerning the conditions of employment
are taken, namely on board the ship. The United Kingdom and the Commission in contrast do not regard the nationality of the
ship as relevant to determining the place where the damage occurred within the meaning of Article 5(3) of the Convention.
78. I agree that the nationality of the
Tor Caledonia does not seem to be relevant to the questions referred to the Court in the present case. None of the factors mentioned by
DFDS or the Danish Government in that connection is in my view material to the allocation of jurisdiction in accordance with
the Brussels Convention: it is clear from the Court's case-law both that proceedings to prevent the commission of allegedly
unlawful acts may fall within Article 5(3) of the Convention and that such proceedings may be brought either at the place
where the damage occurred or at the place of the event giving rise to it. In the present case the damage in question is not
the proposed change to the conditions of employment on board the ship but the withdrawal of the ship from service and its
replacement by another leased vessel which DFDS considered to be necessary in the light of the notices of industrial action.
Although as mentioned above the question where the damage occurred in the sense of where the unlawful act produced its harmful
effects upon the victim is a question of fact for the national court, it is hard to see how such damage could in the circumstances
of the present case be regarded as having occurred on board the vessel concerned.
79. Finally I would stress that a court seised of proceedings pursuant to Article 5(3) of the Convention must, when determining
whether it has jurisdiction on the basis of the place where the harmful event occurred, have regard to the case-law of the
Court on the Convention, and in particular to the overriding principle that the rule of special jurisdiction laid down in
Article 5(3) is based on the existence of a particularly close connecting factor between a dispute and the courts for the
place where the harmful event occurred which justifies the attribution of jurisdiction to those courts for reasons relating
to the sound administration of justice and the efficacious conduct of proceedings.
(43)
Conclusion
80. I accordingly consider that the questions referred by the Arbejdsret should be answered as follows:(1)(a) Where in accordance with the law of a Contracting State a court of that State has exclusive jurisdiction to rule on
the illegality of industrial action and another court of that State has jurisdiction to hear claims for compensation for damage
caused by such illegality, proceedings before the first court seeking a declaration that industrial action is unlawful fall
within the scope of ‘matters relating to tort, delict or quasi-delict' within the meaning of Article 5(3) of the Brussels
Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.(1)(b) Such proceedings fall within the scope of ‘matters relating to tort, delict or quasi-delict' within the meaning of
Article 5(3) of the Brussels Convention even where the industrial action whose illegality those proceedings seek to have established
may not directly cause harm to the claimant, provided that the principal industrial action is a necessary condition governing,
and may constitute the basis for, sympathy actions which will result in such harm.(1)(c) Such proceedings fall within the scope of ‘matters relating to tort, delict or quasi-delict' within the meaning of
Article 5(3) of the Brussels Convention even where implementation of the industrial action whose illegality those proceedings
seek to have established is, after the proceedings have been brought, suspended by the notifying party until the court seised
has ruled on the issue of its legality.
(2) Where proceedings are brought before the courts of a Contracting State on the basis that they are the courts of the place
where the damage occurred for the purpose of Article 5(3) of the Brussels Convention as interpreted by the Court of Justice,
it is for those courts to determine, in accordance with the Court's case-law, the place where the event giving rise to the
damage, entailing tortious, delictual or quasi-delictual liability, produced its harmful effects upon the claimant. Where
the damage results from the notification by a trade union of collective industrial action for the purpose of securing an agreement
covering the work of seamen on board a ship registered in one Contracting State which sails to another Contracting State,
the nationality of the ship is not a relevant criterion for determining where the damage occurred.
- 1 –
- Original language: English.
- 2 –
- Convention of 27 September 1968. A consolidated version of the Convention as amended by the four subsequent Accession Conventions
is published in OJ 1998 C 27, p. 1.
- 3 –
- OJ 2001 L 12, p. 1.
- 4 –
- 21st recital in the preamble to, and Articles 1(3) and 76 of, the Regulation.
- 5 –
- Protocol concerning 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, signed at Luxembourg on 3 June 1971. A consolidated version
of the Protocol as amended by the four subsequent accession conventions is published in OJ 1998 C 27, p. 28.
- 6 –
- Paragraph 42 of the Swedish Law on Joint Decision-Making.
- 7 –
- Law No 183 of 12 March 1997.
- 8 –
- Cited in note 5.
- 9 –
- See paragraph 21.
- 10 –
- Report on the Protocols on the interpretation by the Court of Justice on the Convention of 29 February 1968 on the mutual
recognition of companies and legal persons and of the Convention of 27 September 1968 on jurisdiction and the enforcement
of judgments in civil and commercial matters, 3 June 1971, OJ 1979 C 59, p. 66, paragraph 11(1).
- 11 –
- Report on the Convention on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern
Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol
on its interpretation by the Court of Justice, 9 October 1978, OJ 1979 C 59, p. 71, paragraph 255.
- 12 –
- See paragraph 4 above.
- 13 –
- ‘wenn eine unerlaubte Handlung oder eine Handlung, die einer unerlaubten Handlung gleichgestellt ist, oder wenn Ansprüche
aus einer solchen Handlung den Gegenstand des Verfahrens bilden ...'
- 14 –
- Case 21/76 [1976] ECR 1735, paragraph 18 of the judgment.
- 15 –
- Case 189/87 [1988] ECR 5565, paragraph 17 of the judgment.
- 16 –
- Emphasis added.
- 17 –
- See Case 129/83
Zelger [1984] ECR 2397, paragraph 15 of the judgment, Case C-365/88
Hagen [1990] ECR I-1845, paragraph 19, and Case C-68/93
Shevill [1995] ECR I-415, paragraphs 35 and 36.
- 18 –
- Case C-167/00 [2002] ECR I-8111.
- 19 –
- Paragraph 41 of the judgment.
- 20 –
- Paragraph 42 of the judgment, citing
Mines de Potasse d'Alsace, cited in note 14, paragraph 18.
- 21 –
- Paragraph 46 of the judgment, citing
Mines de Potasse d'Alsace, cited in note 14, paragraphs 11 and 17; Case C-220/88
Dumez France and Tracoba [1990] ECR I-49, paragraph 17,
Shevill, cited in note 17, paragraph 19, and Case C-364/93
Marinari[1995] ECR I-2719, paragraph 10.
- 22 –
- .Shevill, cited in note 17, paragraph 40 of the judgment;
Henkel, cited in note 18, paragraph 42.
- 23 –
- .Henkel, cited in note 18 and discussed in paragraphs 37 to 40 above.
- 24 –
- Case C-269/95
Benincasa [1997] ECR I-3767, paragraph 27 of the judgment.
- 25 –
- See
Shevill, cited in note 17, paragraph 38, and more generally paragraphs 35 to 41, of the judgment.
- 26 –
- Case 38/81
Effer [1982] ECR 825, paragraph 7 of the judgment; see also paragraphs 3 to 6 of the Opinion of Advocate General Reischl.
- 27 –
- See Article 18.
- 28 –
- Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ 1979 C 59, p.
1.
- 29 –
- Cited in note 17, paragraphs 34 to 41 of the judgment.
- 30 –
- .Marinari, cited in note 21, paragraph 19 of the judgment.
- 31 –
- Case C-51/97
Réunion Européenne [1998] ECR I-6511, paragraph 34 of the judgment.
- 32 –
- Case C-26/91
Handte [1992] ECR I-3967, paragraph 18 of the judgment.
- 33 –
- See paragraph 56.
- 34 –
- .Marinari, cited in note 21, paragraph 19 of the judgment.
- 35 –
- .Handte, cited in note 32, paragraph 18 of the judgment.
- 36 –
- Cited in note 14, paragraph 19 of the judgment.
- 37 –
- Paragraphs 15, 17 and 20 of the judgment.
- 38 –
- Cited in note 17, paragraph 24 of the judgment.
- 39 –
- Cited in note 21, paragraphs 28 and 29 of the judgment.
- 40 –
- See
Shevill, cited in note 17, paragraphs 37 to 39 of the judgment.
- 41 –
- Cited in note 21.
- 42 –
- Paragraphs 14 and 15 of the judgment.
- 43 –
- .Henkel, cited in note 18, paragraph 46 of the judgment. See by analogy, in the context of determining the applicable law, Article
3(3) of the Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual
obligations (‘Rome II'), COM(2003) 427 final, presented by the Commission on 22 July 2003, which provides that, notwithstanding
the general rule that the applicable law is that of the country in which the damage arises or is likely to arise, ‘where it
is clear from all the circumstances of the case that the non-contractual obligation is manifestly more closely connected with
another country, the law of that other country shall apply'.
