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Necessity is the Mother of Invention: Wikingerhof (re)considered

The author of this post is Jachin Van Doninck, Lecturer in civil procedure, private international law and ADR at the Vrije Universiteit Brussel.

At the final conference of the Judgtrust project in The Hague, some ten days ago, two decisions of the ECJ on the Brussels I bis Regulation took flak from more than one speaker: Wikingerhof and Toto.

Both of these decisions have already received their fair share of attention in these columns: here (by the late Peter Mankowski, including links to the other contributions dedicated to the same judgment) and here.

The writing of a recently published casenote on the Wikingerhof judgment has nonetheless left me wondering whether the criticism directed at said judgment isn’t missing the mark.

As a reminder, through Wikingerhof, the ECJ attempted to clarify its earlier Brogsitter ruling on delineating matters relating to contract and matters relating to tort for the purpose of applying the heads of jurisdiction under art. 7 point 1 and 7 point 2 of the Brussels I bis Regulation respectively.

Where Brogsitter could be interpreted as considering it sufficient for a claim made in tort under national law to be contractual for the purpose of Brussels I where the conduct complained of may be considered a breach of the terms of the contract (ECJ, para 29, my emphasis), the ECJ held in Wikingerhof that where it does not appear indispensable to examine the content of the contract in order to assess whether the conduct is lawful or unlawful, the cause of the action is a matter relating to tort within the meaning of art. 7.2 Brussels I Recast (ECJ, at para 33, again with my emphasis).

In retrospect it always seemed unlikely that the ECJ would have accepted a full and complete absorption of the forum delicti by the forum contractus in cases of concurrent causes of action, i.e. when a contracting party invokes the infringement of a general legal obligation under competition law as was the case in Wikingerhof. Through Wikingerhof, the ECJ restores the balance between forum contractus and forum delicti in the case of concurrent obligations by setting out a clear criterion, namely whether the contract is the yardstick for review (forum contractus) or merely the subject of review (forum delicti). No surprise either in seeing the potential fora being multiplied then: that has been the steady flow of the ECJ case law on art. 7.2 since the Bier-stance was adopted more than 40 years ago (E. Farnoux, ‘Delendum est Forum Delicti? Towards the jurisdictional protection of the alleged victim in cross-border torts’ in B. Hess, K. Lenaerts en V. Richard (red.), The 50th anniversary of the European law of civil procedure, Baden-Baden: Nomos 2020, (259) p. 263 et seq.).

But most interesting, and least appreciated in my opinion, is the Court’s method in reaching that result. It shouldn’t have come as a surprise though. Less than a year before, in its VKI v. TVP judgment, the ECJ had been asked whether article 1(2)(f) of the Rome I Regulation should be interpreted as excluding from the scope of that regulation contractual obligations based on a trust agreement for the purposes of administering shares in a limited partnership. Was this a corporate matter beyond the reach of Rome I?

In addressing the issue, the ECJ, following its advocate-general Saugmandsgaard Øe, focused on the cause of action of the proceedings:

The action for an injunction brought by the VKI concerns the unfairness and therefore the validity of certain terms of the trust agreements at issue. Therefore, the questions arising from the case in the main proceedings fall within the field of lex contractus and therefore of the Rome I Regulation (ECJ, at para 37).

When asked whether Brussels I Recast provides a forum delicti when the plaintiff seeks an injunction against the use of contractual terms because they are allegedly based on an abuse of a dominant position by the defendant, the ECJ and its advocate-general Saugmandsgaard Øe adopted that same reasoning.

The test again lies in the cause of action:

In particular, as the Advocate General observed in point 90 of his Opinion, the court hearing the action must decide whether a claim between contracting parties is connected to matters relating to a contract, within the meaning of point 1 of Article 7 of Regulation No 1215/2012, or to matters relating to tort or delict, within the meaning of point 2 of Article 7 of that regulation, by reference to the obligation, whether contractual or a matter relating to tort, delict or quasi-delict, which constitutes the cause of action (ECJ, at para 31).

Asked to interpret sources of European private international law, the ECJ’s answer has time and again revolved around the word ‘autonomous’. Through Wikingerhof, the ECJ has now demonstrated that such autonomous interpretation of EU instruments is no mere recipe for haphazard case by case reasoning but also involves an exercise in qualification, thereby addressing the following question: which law imposes itself through the subject matter of the claim and the legally relevant facts underlying it, i.e. the cause of action? That approach warrants more credit than is currently being granted.

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