The post below was written by Bernard Haftel, who is Professor of Private International Law at the University of Sorbonne Paris Nord.
This is the third contribution to the EAPIL on-line symposium on the ruling of the Court of Justice in the case Hrvatske Sume d.o.o. Zagreb v BP Europa SE. The previous posts were authored by Peter Mankowski and Adrian Briggs.
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 firstname.lastname@example.org.
It is not my habit to say good things about the decisions of the Court of Justice, but for this New Year, let’s say that this will count as a good resolution.
So let’s be clear : the decision in Hrvatske Sume d.o.o. Zagreb v BP Europa SE on 9 December 2020 seems to be not only a good decision on the very issue at hand, but also indicative of a return to some general orthodoxy, or so we hope (but perhaps this is again the optimism of the beginning of the year speaking).
The solution – which consists in treating claims based on unjust enrichment as being, in principle, neither contractual nor tortious, and therefore subject only to the forum of the defendant’s domicile – seems to us to be in line with the concepts of contractual and tortious matters provided for by the Regulation, with the aims pursued by its rules and with the general logic of the Brussels “system”.
I/ On a conceptual level
On a conceptual level, the question was whether the claim for unjust enrichment corresponded to the central concepts of “matters relating to a contract” or “matters relating to tort, delict or quasi-delict”. In accordance with the Kalfélis case law, the Court of Justice recalls that matters relating to tort, delict or quasi-delict are subsidiary, covering “any claim which seeks to establish the liability of a defendant and which is not related to contractual matters”. The result was that it was necessary to consider the contractual characterisation beforehand. Does unjust enrichment imply a ‘legal obligation freely entered into by one person in relation to another and on which the claimant’s action is based’? (ECJ 20 janv. 2005, Engler, Case C-27/02, ECJ 14 mai 2009, Ilsinger, Case C-180/06) The Court answers in the negative. More precisely, the Court answers that this is not in principle the case. Unjust enrichment does not in principle imply a contractual basis. In the case under review, the unjust enrichment resulted from the execution of a court decision that was subsequently declared invalid. However, the Court rightly adds, quoting Advocate General Saugmandsgaard Oe, that in some cases enrichment may well have a strong link with a contract. The idea of unjust enrichment is indeed broad and can cover unjust enrichment in the strict sense, but also what french law calls répétition de l’indu (restitution of undue payment) or restitutions following the annulment of a contract. However, it is clear that when unjust enrichment is closely linked to a contract, and typically when it is the consequence of an annulment, the action is contractual in nature (The judgment cites the Profit Investment SIM judgment of 20 April 2016 (Case C 366/13) on pt. 40 in this regard).
The fact remains that unjust enrichment is not, as a matter of principle, contractual in nature outside these cases.
Does this mean that it is a tort, delict or quasi-delict ? This is to question the second criterion laid down by the Kalfélis judgment: for a non-contractual action to fall within the scope of delictual or quasidelictual matters, it must still be an action for liability. In the French version, the term “responsabilité” is used. Coming from the Latin “respondere”, it implies that a person is called upon to answer for the harmful consequences of his actions, whether intentional (delict) or unintentional (quasi-delict). The English word “liability”, coming from the French “lier”, ie bind, goes in the same direction. It involves establishing that a person is bound by his or her actions and must repair the harmful consequences. All the language versions point in the same direction: matters relating to tort, delict or quasi-delict presuppose an act that has caused damage, which the purpose of the liability action is to repair.
The Court rightly points out that none of these elements are present in the case of an action for unjust enrichment. It is almost the opposite.The act which gives rise to unjust enrichment is generally not an act of the defendant, but of the plaintiff. In principle, it is not the defendant who is at the origin of the unjust enrichment, but the plaintiff who has enriched him. This fact, then, has not caused damage but, on the contrary, an advantage to the defendant who is then sued for unjust enrichment. Finally, and logically as a consequence of the above, the object of the action is not to call the defendant to account for his actions but to invite him to return the advantage he has received without cause.
Conceptually, and regardless of the language version, unjust enrichment is therefore logically not part of the concept of “tort, delict or quasi-delict”.
II/ On a teleological level
As we know, it is often less conceptual rigour than functional appropriateness that guides the Court of Justice, especially when it is called upon to clarify its qualifications.
The uniform interpretation praised by the Court of Justice is based not so much on conceptual rigour – which in any case would have no real basis in the absence of a sufficiently developed uniform substantive law – as on the aims and objectives of the regulation whose interpretation is at issue.
From this point of view, the solution adopted also appears satisfactory, in two respects.
Firstly, because the criterion applied to torts, delicts and quasi-delicts is simply not applicable to unjust enrichment. Under the terms of Article 5§3, now 7§2, the criterion of jurisdiction is the place where the harmful event occurred. In a case of unjust enrichment, there is no harmful event. There is no event causing damage, but only an event causing enrichment, which will usually be the act of the plaintiff. There is no damage either, but an enrichment, which is not only conceptually the opposite of damage but, moreover, is not materially locatable. Since the criterion is thus inapplicable, the corresponding qualification is for this reason alone manifestly inadequate.
Secondly, the solution here is at odds with that adopted in matters of conflict of laws. In this area, unjust enrichment, like quasi-contracts in general, is a matter for extra-contractual matters and the Rome II Regulation. The idea of consistent interpretation set out in point 7 of the preamble to the Rome I and Rome II Regulations could thus have led to unjust enrichment being placed in the field of Article 7§2. However, on the one hand, the terminology is different, the Rome II Regulation speaking of “non-contractual obligations” while the Brussels Regulations speak of “tort, delict or quasi-delict”. On the other hand, and above all, the consequences of the qualification are not the same. In matters of conflict of laws, the Rome II Regulation provides for specifically appropriate criteria (or at least specifically designed for such cases), which is not the case in matters of jurisdiction. Above all, in matters of jurisdiction, as the judgment under review illustrates, it is quite possible not to qualify at all, because of the general ground of jurisdiction constituted by the defendant’s domicile. Obviously, nothing similar is possible in matters of conflict of laws.
III/ On a systemic level
Finally, the solution also appears satisfactory on a more general level. Not only does the solution highlight the autonomy of the qualifications adopted in the field of conflict of laws and jurisdiction (CJEU 16 Jan. 2014, Kainz, Case C-45/13, CJEU, 28 July 2016, Case C-191/15, VKI c/ Amazon EU), which is an excellent point, but, above all, it restores to its rightful place the principle ground of jurisdiction : the defendant’s domicile.
The Court of Justice systematically repeats that the forum of the defendant’s domicile is the principle, to which the other grounds of jurisdiction, in particular those of Article 7, are only exceptions, which are by nature subject to strict interpretation. This is what led the Court, initially at least, to leave the actio Pauliana unqualified (ECJ, 26 march 1992, Case C-261/90, Reichert II. In a contractual context, the Court now decides that the actio Pauliana falls within the scope af article 7§1, see CJEU, 4 oct. 2018, Feniks, Case C-337/17). However, in recent years, although it has continued to repeat like a mantra that the alternative grounds of jurisdiction in Article 7 are merely derogations from the principle of the forum of the defendant’s domicile, implying a particularly close link, the Court of Justice has tended to extend the scope of these derogations, in particular to matters relating to tort, delict or quasi-delict. For instance, it has ruled that an action seeking to deny liability falls within the scope of Article 7§2 (CJEU, 25 oct. 2012, Case C-133/11, Fischer), as does an action for an injunction in which a consumer protection association sought to prohibit a trader’s use of unfair terms in contracts with consumers (ECJ, 1st oct. 2002, Case C-167/00, Henkel). However, strictly speaking, none of these actions “sought to bring into play the liability of the defendant”.
It is therefore a return to a certain orthodoxy that the judgment under review implies. A return to the idea that the defendant’s forum is a principle; a principle from which the alternative grounds of jurisdiction in Article 7 derogate only if there is a sufficiently close link between the alternative forum and the dispute, which is clearly not the case in matters of unjust enrichment. On a systemic level, the solution appears equally justified.
So how did we get a decision of the CJEU satisfactory in all respects? In Luxembourg, Santa Claus was obviously two weeks early.
 ECJ 27 Sept. 1988, Case 189/87, Kalfélis, ECR 1988, p. 5565, the decision already seemed to find that unjust enrichment was excluded from Article 5§3. The principle is regularly recalled, see recently, e.g., CJEU, 28 Jan. 2015, Kolassa, Case C-375/13, CJEU, 24 Nov. 2020, Wikingerhof, C 59/19.