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Freedom of Choice in Wikingerhof

The post below, written by Gilles Cuniberti, a professor of Private International Law at the University of Luxembourg, and an editor of this blog, is the third contribution to the EAPIL online symposium on the ruling of the Court of Justice in Wikingerhof v. Booking. The previous posts, authored by Matthias Lehmann and Adrian Briggs, can be found here and here.

Other contributions will follow, the next one being scheduled for later today. Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.


One of the novelties of Wikingerhof is the introduction of a new requirement for the application of the special jurisdictional rules laid down by Article 7(1) and (2) of Regulation No 1215/2012: the claimant’s choice to rely on one of those rules.

29 It must therefore be held that the applicability of either point 1 of Article 7 of Regulation No 1215/2012 or point 2 of Article 7 thereof depends, first, on the applicant’s choice whether or not to rely on one of those rules of special jurisdiction and, second, on the examination, by the court hearing the action, of the specific conditions laid down by those provisions.

This is because, the court explains, the scheme of Regulation No 1215/2012 ‘is characterised by the possibility which it confers on the applicant of relying on one of the rules of special jurisdiction laid down by that regulation’ (para. 27).

The purpose of this post is to explore the implications of this requirement.

Which Choice?

If the claimant is offered the possibility to choose, one would think that this is because he has an option. In the context of Article 7, this would seems to mean that courts having jurisdiction on the basis of Article 7(1) and courts having jurisdiction on the basis of Article 7(2) are simultaneously available.

This, however, is hard to conceive.

First, the court held that the rules on special jurisdiction laid down in  Article 7 of the Brussels I bis Reguation “are mutually exclusive in the application of that regulation” (para. 26). This seems to mean that the special rules in Article 7 cannot be applicable at the same time. If one rule is applicable, the application of the other is excluded.

Secondly, the second applicability requirement of the rules in Art 7(1) and (2) is that “the specific conditions lay down by these provisions” are ascertained by the relevant court. The conditions for each of the provisions turn around a single test, which is whether it is indispensable to examine the content of the contract in order to assess the lawfulness of the conduct of the defendant. If it is, Article 7(1) applies, and Article 7(2) does not. If it is not, Article 7(2) applies, and Art 7(1) does not.

So there is no option. The conditions of Article 7(1) or Art 7(2) cannot be met at the same time. Only one of these rules applies (at best).

So what does it mean that the claimant can choose to rely on one or the other?

Whose Choice?

What it could mean is that the claimant could choose an Article 7(1) forum over an Article 7(2) forum irrespective of the respective conditions of application of each of the provisions. In other words, the claimant could derogate from the conditions of applicability and choose one forum which would not have jurisdiction under Article 7.

This interpretation would be surprising, for a number of reasons.

First, as already underscored, the Wikingerhof court held that the second applicability requirement condition is that the court verifies that the conditions for the relevant jurisdictional rule are met. This suggests that it should not retain jurisdiction if these conditions are not met.

Second, while the parties may derogate from jurisdictional rules, this is only possible if both parties agree, whether expressly (choice of court agreement) or implicitly (submission to jurisdiction). There is no reason to favour the claimant in this respect. The Wikingerhof court explained that it is somehow relevant that Wikingerhof chose to rely on (national) tort rules. But why wouldn’t it be relevant that the defendant would choose to rely on (national) contractual defences? It does not seem that Booking did exactly that in that case, but not far: it relied on a choice of court agreement.

Conclusion: Second Order Characterisation

Finally, it is not quite clear why, after insisting that the concepts of ‘matters relating to a contract’ and ‘matters relating to tort’ should receive an autonomous interpretation, and repeating the European definitions of these concepts, the Wikingerhof court found it useful to underscore on which ground of national law the claimant would be seeking to establish liability.

Why should it matter if the conditions to meet are defined at European level? And how could it matter? Would this mean that Article 7(2) would only be available if the substantive claim was delictual in nature under the applicable national law? But, as far as substantive law is concerned, there is no freedom of choice between tort and contractual liability in all legal systems. In France and Luxembourg, there is no choice: contractual liability prevails and excludes tort liability when a given claim could fall within the scope of both kinds of liability.

Ultimately, one wonders whether the possibility of second order characterization was well perceived by the court. As the readers of this blog will know, it is common, and perfectly fine, to make one characterization for private international law purposes, and another for the purpose of applying substantive rules. In the context of the Brussels I bis Regulation, it is equally fine to characterize the claim for jurisdictional purposes pursuant to European concepts, and then to characterize the same claim differently for the purpose of applicable substantive rules.

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