Jurisdiction EU Special

Special jurisdiction

Alternative grounds of jurisdiction are set out in Brussels 1 Regulation (recast). They give the plaintiff the option to take proceedings in an EU state other than that in which the defendant is domiciled. However, the plaintiff need not necessarily do so.

The EU courts have interpreted the rules of special jurisdiction as an exception which should be interpreted restrictively. The predominant principle remains that the person should be sued in the courts of his domicile (habitual residence).

Contract

In a matter relating to a contract, a person may be sued in another state other than his domicile if it is the place of the performance of the contract obligation in question.  The provision applies even if the defendant challenges the existence of the contract concerned.

Contract implies an obligation freely undertaken. There need not necessarily be a concluded contract. Disputes relating to the existence of a contract are covered.

It appears that pre-contractual disputes are not covered. They may be subject to the provisions in relation to restitution and torts.

There are different views as to whether restitution claims are subject to the provisions.  A better view would appear to be that they fall within the same provision.

Place of Performance

The place of performance may or may not be clear. In many cases involving the sale of goods or supply of services, the position may be self-evident; in other cases, it will be a question of ascertaining the obligations and identifying where they are to be performed.

Each person’s obligation may be looked at separately.  Where there are obligations involving two states, more complex issues may arise. The courts consider what the principal obligations are and what the subsidiary or less significant obligations are.

The relevant obligation is that under the contract. The place where it should be performed is decided by the law governing the obligation under the domestic rules in the court hearing the matter. The court identifies the obligations based on which the claim is based and if there are more than one, it identifies the principal obligation and where it is to be performed.

Sale of Goods

In the case of the sale of goods and the supply of services, jurisdiction is determined by the place of performance of the obligation, which determines the nature of the contract. This is the characteristic obligation.

In the case of the seller this is the obligation to deliver the goods or the obligation to provide the service. Therefore, the place of performance, unless otherwise agreed, is where the goods are delivered or should have been delivered or where the service is or should have been provided.  The payment is not regarded as the characteristic performance

The place of performance of an obligation in the case of the sale of goods is  usually the place in European Union EU state where under the contract where the goods are or should be delivered. Where the contract provides for the delivery of goods in multiple locations whether within the same state or number of different states the courts look at the principal place of delivery. Where is not possible to determine the principal place of delivery, the plaintiff may sue the defendant in a place of delivery of its choice.

If the place of delivery of goods or the supply of services is not in an EU member state, the question turns on where the principal obligation is performed.  Therefore, an obligation to pay may be governed by the place where the creditor is based.

Services

In the case of services, the place of performance of the characteristic obligation  is the place in an EU state where under the contract the services were provided or should have been provided.

Where services are to be provided in a number of states, the matter is determined by the place where pursuant to that contract the main provision of services is to be carried out.

Tort/ Civil Wrongs

Torts includes all claims relating to civil wrongs,  that seek to establish the liability of the defendant and that are not linked to a contract. The court may have to consider whether the matter relates to tort or contract in in some circumstances.

In the case of a claim based on tort / civil wrongs, the person may be sued in the courts of the place where the harmful event occurred or may occur.  Therefore, where a person is injured by the negligent driving of a person in another state, legal proceedings may be brought there.

The place where the damage occurs may depend on the nature of the rights concerned claimed to be infringed. It may be that the damage takes place in one state even though caused in another. However jurisdiction may be allowed on the basis of where the damage occurred provided that the right infringed is subject to protection in that state.

Place of Damage

The key question is where the damage/ harmful event has or may occur.  In some cases, the harmful event may occur in several places.  The harmful event occurs where the damage occurs, or a place or event gives rise to it.  This, for example, has been applied in relation to pollution.

The harmful event occurs where the injury or damage is inflicted rather than where the injury is suffered. The place where (for example, the negligence occurs), rather than where the harmful consequences are suffered, determines the position. They will usually, although not necessarily, be in the same place.

In a libel case, the harm may occur in a number of states, and the claimant may have a choice of where to bring proceedings.  He may bring proceedings where the publisher is established or in any one of the places where the publication is distributed because damage occurs there.  However, he can only recover the damage suffered in that particular Member State.

The principles cover threatened wrongs as well as actual harm.  Therefore, an injunction may be sought restraining publication in a particular place where the publication is threatened.

As regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, jurisdiction is with the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings.