On 8 March 2018, the Court of Justice of the European Union issued a judgment in the case C‑64/17, between Saey Home & Garden NV/SA v. Lusavouga-Máquinas e Acessórios Industriais SA, on a request for a preliminary ruling under Article 267 TFEU from the Tribunal da Relação do Porto (Court of Appeal, Porto, Portugal) concerning the interpretation of Article 4(1), Article 7(1) and Article 25 of Regulation (EU) No 1215/2012, in respect of a claim for compensation arising out of the termination of a commercial concession agreement concluded between those two companies concerning the Spanish market.
Facts of the case
Lusavouga has its registered office in Cacia, Aveiro (Portugal) and its premises are in Portugal. Its business consists in import, export and wholesale disribution of machines, tools and other equipment. Its commercial network covers Spain, inter alia, where it has no branch or establishment. Saey Home & Garden is a company with its registered office in Courtai (Belgium), which specialises in the manufacture and sale, inter alia, of kitchen equipment and utensils bearing the trademark ‘Barbecook’. That company also does not have a branch or establishment in Spain.
At the end of 2013 or the beginning of 2014, the parties to the main proceedings concluded a commercial concession agreement concerning the exclusive promotion and distribution (with the exception of one client) in Spain to retailers and final consumers of goods manufactured under the trade mark cited above.
Although no document evidencing the conclusion of that agreement was drafted, the referring court considers that the existence of that agreement has been established. Under that contract, from January to July 2014, Lusavouga ordered those goods from Saey Home & Garden and sold them in Spain.
By letter of 17 July 2014, Saey Home & Garden informed Lusavouga that it had decided to terminate their arrangment.
On 19 June 2015, Lusavouga brought an action against Saey Home & Garden before the Tribunal de Comarca de Aveiro (District Court, Aveiro, Portugal) seeking an order for the latter to pay it EUR 24 000 corresponding, first, to EUR 10 000 for compensation resulting from the actions of Saey Home & Garden and the premature and unexpected termination of the commercial concession agreement and, second, EUR 14 000 in respect of goodwill indemnity.
Saey Home & Garden raised a plea of lack of jurisdiction of the Portuguese courts to hear the dispute in the main proceedings, arguing, first, that the goods concerned were loaded in Belgium and that Lusavouga was responsible for the transport and, second, that paragraph 20 of the general terms and conditions to which the sale of those goods were subject contained a jurisdiction clause providing that disputes would be decided by the courts of Kortrijk (Courtai, Belgium).
The Tribunal de Comarca de Aveiro (District Court, Aveiro) dismissed the plea of lack of jurisdiction and held that the Portuguese courts had international jurisdiction on the basis of Article 7(1)(a) of Regulation No 1215/2012.
Saey Home & Garden brought an appeal against that decision before the referring court, the Tribunal da Relação do Porto (Court of Appeal, Porto, Portugal) arguing, in particular, that the commercial concession agreement at issue in the main proceedings requires the supply of services in Spain, so that that Member State is the place of performance of the contractual obligations. Furthermore, Saey Home & Garden argues that the wrongful termination of a contract is covered by ‘matters relating to contract’ within the meaning of Article 7(1)(a) of Regulation No 1215/2012, which excludes the jurisdiction of the Portuguese courts.
The referring court states that the question to be decided is whether the Portuguese, Belgian or Spanish courts have international jurisdiction to hear the dispute at issue in the main proceedings. Furthermore, if the Portuguese courts lack jurisdiction to hear the case in the main proceedings, that court considers that it must determine whether the Belgian or Spanish courts have jurisdiction to hear that dispute.
Taking the view that the resolution of the case in the main proceedings depends on the interpretation of the provisions of Regulation No 1215/2012, the national court decided to stay the proceedings and to refer a series of questions to the Court of Justice for a preliminary ruling, concerning in particular the interpretation of articles 4(1), 7(1)(a) (b) and (c), 7(5) and 25(1).
The decision of the CJEU
First of all, the Court declared admissible the request for a preliminary ruling, noting that, according to settled case-law, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 43 and the case-law cited). In the present case, the Court noted that the interpretation requested of certain provisions of Regulation No 1215/2012 has a genuine and direct link with the subject matter of the dispute in the main proceedings, which is sufficiently detailed, and the answer that the Court may provide to the questions referred will enable the referring court to dispel its doubts and resolve the dispute.
Article 25(1)(a) of Regulation No 1215/2012 provides that the jurisdiction clause may be concluded in writing or evidenced in writing. Where a jurisdiction clause is stipulated in the general conditions, the Court has already held that such a clause is lawful where the text of the contract signed by both parties itself contains an express reference to general conditions which include a jurisdiction clause (judgment of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraph 39 and the case-law cited). In the present case, it is clear from the documents before the Court that the commercial concession agreement at issue in the main proceedings was concluded verbally and was not evidenced in writing, and the general terms containing the jurisdiction clause concerned were mentioned only in the invoices issued by the defendant in the main proceedings.
In the light of those factors, and having regard to its previous case-law, the Court concluded that a jurisdiction clause, such as that at issue in the main proceedings, does not satisfy the requirements of Article 25(1)(a) of Regulation No 1215/2012, which is for the referring court to ascertain.
Moreover, the Court noted that Article 25(1)(b) and (c) provides that a jurisdiction clause may also be concluded in a form which accords with practices which the parties have established between themselves, or in a form which accords with a usage of which the parties are or ought to have been aware. It is for the referring court, where necessary, to determine whether a jurisdiction clause has been concluded between the parties in the main proceedings in one of those forms.
It follows that Article 25(1) of Regulation No 1215/2012 must be interpreted as meaning that, subject to the verifications to be made by the referring court, a jurisdiction clause, such as that at issue in the main proceedings, set out in the general conditions of sale mentioned in invoices issued by one of the contracting parties does not satisfy the requirements of that provision.
As to the issues related to the interpretation of Article 7(1) of Regulation No 1215/2012, the Court stated that, in the first place, Article 7(1)(b), first and second indents, of Regulation No 1215/2015 must be interpreted in order to determine whether a commercial concession agreement, such as that at issue in the main proceedings, constitutes a contract for the ‘sale of goods’ or the ‘provision of services’ within the meaning of that provision.
Second, subject to verification by the referring court that the commercial concession agreement at issue in the main proceedings may in fact be classified as a ‘contract for the supply of services’, the place of performance of the obligation which characterises such a contract and the court with jurisdiction to hear disputes related to it must be determined.
In that connection, as is clear from the documents before the Court, the commercial concession agreement at issue in the main proceedings is an exclusive distribution agreement (with the exception of one client) granted by agreement between a company established in Belgium and another company established in Portugal, for the distribution of goods on the Spanish market, although neither of those companies has a branch or establishment in Spain.
It follows from the case-law of the Court that, when there are several places of performance of the obligation characteristic of a contract for the supply of services the ‘place of performance’ within the meaning of Article 7(1)(b), second indent, of Regulation No 1215/2012 must be understood as the place with the closest linking factor, which, as a general rule, will be at the place of the main provision of services (see, to that effect, judgment of 11 March 2010, Wood Floor Solutions Andreas Domberger, C‑19/09, EU:C:2010:137, paragraphs 33 and 34).
Therefore, under that provision, the court with jurisdiction to hear claims based on a contract for the supply of services in the case of the supply of services in several Member States is the court of the Member State of the place of the main provision of services, as it follows from the provisions of the contract and, in the absence of such provision, of the actual performance of that contract and, where it cannot be determined on that basis, the place where the agent is domiciled (see, to that effect, judgment of 11 March 2010, Wood Floor Solutions Andreas Domberger, C‑19/09, EU:C:2010:137, paragraph 43).
In light of the foregoing analysis, the Court concluded that:
1. Article 25(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, subject to the verifications to be made by the referring court, a jurisdiction clause, such as that at issue in the main proceedings, set out in the general conditions of sale mentioned in invoices issued by one of the contracting parties does not satisfy the requirements of that provision.
2. Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that the court with jurisdiction, by virtue of that provision, to hear a claim for compensation relating to the termination of a commercial concession agreement concluded between two companies established and operating in two different Member States for the distribution of goods on the domestic market of a third Member State in which neither of those companies has a branch or establishment, is that of the Member State in which the place of the main supply of services, as is clear from the provisions of the contract and, in the absence of such provisions, the actual performance of that contract, and where it cannot be determined on that basis, the place where the agent is domiciled.
Full text decision
