On 9 December 2021, the CJEU ruled in HRVATSKE ŠUME d.o.o., Zagreb v. BP EUROPA SE (Case C-242/20) that the distinction between contracts and torts under Article 7 of the Brussels I bis Regulation is not exclusive, and that claims for unjust enrichment need not be characterised either as contractual or tortious (see the comments by Geert van Calster here and here).
The Court had established until this case a clear bright line rule. Cases which did not fall within the jurisdictional rule for contracts (Article 7(1)) fell within the jurisdictional rule for torts (Article 7(2)). The ‘tort’ category was thus a residual category which included all liability actions which were not contractual in nature.
Hrvatske Sume changes this, and may have far reaching consequences.
First, as Article 7(2) only applies to ‘torts’ as such, it will now be necessary to positively define the concept of tort in the meaning of that provision. Will it include strict liability rules? Will it include torts which do not require the existence of a damage? Will it include torts which do not strictly require causation between the act of the defendant and the damage suffered by the victim?
Secondly, it will be necessary to identify those concepts which must be distinguished from torts and contracts. One of them is unjust enrichment. What are the others? Other quasi-contracts such as negotiorum gestio? Certain statutory rights? Certain other remedies?
Starting from tomorrow morning, the EAPIL blog will host an online symposium to discuss the above issues. Peter Mankowski will kick off the discussion. More contributions are scheduled for publication later on Monday and on Tuesday.
Readers are encouraged to contribute to the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by writing an e-mail to Pietro Franzina (firstname.lastname@example.org).