This post was contributed by Jeremy Heymann, who is Professor of Law at Université Jean Moulin Lyon 3.
On 29 June 2022, the French Court of cassation ruled on the interplay between national exorbitant rules of jurisdiction and those contained in the recast Brussels I Regulation. As is well known, Article 6(2) of the Regulation provides that “any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point (a) of Article 76(1), in the same way as nationals of that Member State”, against a defendant who is not domiciled in a Member State.
French Legal Background
In France, such exorbitant rules of jurisdiction are to be found in Articles 14 and 15 of the French civil Code. Article 14 provides especially that “an alien, even if not residing in France, may be cited before French courts for the performance of obligations contracted by him in France with a French person”. He also “may be brought before the courts of France for obligations contracted by him in a foreign country towards French persons”. Even if the provision seems to be, in its wording, limited to contracts, it has been interpreted by the French courts to cover all claims (with very few exceptions).
First Case – The Facts
In one of the two cases (no 21-10.106), the plaintiff was a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superiors in order to force him to take part in granting loans under illegal conditions. Once the refugee status obtained, the plaintiff brought an action in tort before the French courts against his former employer and its parent company.
On the merits of the case, on appeal, the Court of appeal of Paris declared that French courts lacked jurisdiction, on the grounds that the equality of treatment between nationals and refugees, provided for in Article 16 of the 1951 Refugee Convention, refers only to the rules of enjoyment of rights and not to the rules of jurisdiction. It therefore held that such a provision could not lead to the extension of the jurisdiction of a French court to the detriment of that of a foreign court.
The First Ruling
The French Court of Cassation rightfully quashed such a ruling, holding that pursuant to Article 6(2) of the recast Brussels I Regulation, a foreigner may avail himself of Article 14 of the French Civil code (i.e. a rule of jurisdiction in force in France and notified as such to the European Commission pursuant to point [a] of Article 76), under the sole condition that he is domiciled in France and the defendant is domiciled outside a Member State of the European Union (para. 12 of the ruling). In so ruling, the Court of cassation criticizes the Parisian Court of appeal for not having ensured the application of Article 14 of the French civil Code in the light of the recast Regulation. According to the Court of cassation, it is indeed up to the courts of the Member States to ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 10 of the ruling). Therefore, and even if Article 14 of the French civil Code is only intended for French nationals, the legal protection enshrined in Article 6(2) of the recast Brussels I Regulation prevails and makes the application of Article 14 of the French civil Code dependent on the conditions that it sets out. In other words, only the domicile of the plaintiff was relevant in this case, not his nationality.
The ruling of the Court of cassation is more than welcome to remind French courts that even though the plaintiff is a foreigner and the defendant domiciled outside a Member State, the recast Regulation may be applicable and command the application of the said Article 14.
Second Case – The Facts
In the other case (no. 21-11.722), the plaintiff was also a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superior. Once the refugee status obtained, this plaintiff also brought an action in tort before the French courts against his former employer and its parent company.
Unlike in the previous case, the Court of Appeal of Paris found Article 14 of the French civil Code applicable in this case and thus ruled that French courts had jurisdiction. The grounds of such an application were nonetheless debatable, as the Court relied on the provisions of the 1951 Refugee Convention and held that Article 16(2) of this Convention should be interpreted as establishing equal treatment between a French national and a refugee with regard to Article 14 of the French civil Code.
The Second Ruling
To uphold the ruling, the French Court of Cassation had to proceed to a substitution of grounds, as the Court of Appeal of Paris did not base its decision on the provisions of the recast Brussels I Regulation. To do so, the Court of Cassation argued once again that the courts of the Member States must ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 5 of the ruling), before holding that it follows from the combination of Article 6 and 21 of the Recast Brussels I Regulation and Article 14 of the French civil Code that, where neither the domicile of the defendant, nor the place of performance of the work nor the place where the establishment that hired the employee is located is situated in the territory of a Member State, the applicable rules of jurisdiction are the ones that have been notified to the European Commission, among which is Article 14 of the civil Code. The foreigners domiciled in the forum State may therefore avail themselves of the latter provision in the same way as French nationals (para. 9). Hence, as the Court of appeal noted that the plaintiff was domiciled in France and the defendants outside the European Union, and that the former had been hired in the Democratic Republic of Congo where his professional activity took place, the Court of Cassation deduced that, irrespective of his refugee status, the plaintiff could invoke Article 14 of the French civil Code (para. 10).
Although the line of reasoning and deduction of the French Cour de cassation appear to be valid, they remain however questionable. One may indeed wonder whether Article 6 of the recast Brussels I Regulation should find application where Article 21(2) cannot. Even if it is true that Article 20(1), provides that “[i]n matters relating to individual contracts of employment, jurisdiction shall be determined by th[e] Section [dedicated to such contracts], without prejudice to Article 6 […]”, such a reservation was already provided for in the former Brussels I Regulation, when the rule of jurisdiction provided for in Article 21(2) did not exist. The line of reasoning followed by the Court of cassation would have therefore been perfectly consistent with the facts at issue. Under the current recast Brussels I Regulation, one should yet remind that Article 6, par. 1, provides that, in the case where “the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to […] Article 21(2) […], be determined by the law of that Member State” (emphasis added). Thus, can national courts apply Article 6 of the recast Brussels I Regulation, and French courts apply in particular Article 14 of the French civil Code by way of consequence, when the criteria provided for in Article 21(2) are not met? The Court of Cassation has considered that the answer must be affirmative.
One could nonetheless argue that there may have been room on this matter for a request for a preliminary ruling to the European Court of Justice, in particular with a view to ascertaining the exact scope of Article 21(2) of the recast Regulation, as well as, more generally, the spatial scope of that instrument and the empire claimed by its own rules of jurisdiction.