EUPillar C-133/11 Folien Fischer AG, Fofitec AG v Ritrama SpA (First Chamber)

Summary

This case on the interpretation of Art 5(3) of Brussels I was referred to the CJEU in proceedings between Folien Fischer (established in Switzerland) and Fofitec (part of the Folien Fischer group of companies having its registered office in Switzerland), and Ritrama (established in Italy) concerning the application submitted by the claimants for a negative declaration, relating to the absence of liability in tort/delict in competition matters. All three companies were doing business in the laminated goods sector. Ritrama sent a letter to the other companies claiming that they were anti-competitive because of their distribution policy and refusal to grant patent licences. Upon this, Folien Fischer and Fofitec brought an action in Germany for a negative declaration stating that i) they were not obliged to stop their sales practice; ii) Ritrama had no right to terminate their sales practice or to obtain compensation based on their sales practices; and iii) they were under no obligation to grant a licence for their patents in question. After the initiation of this action, Ritrama and Ritrama AG (a subsidiary established in Switzerland) brought an action for performance in Italy, arguing that the conduct of Folien Fischer and Fofitec was anti-competitive and seeking an award of damages as well as an order requiring Fofitec to grant licences for the patents. The action in Germany was dismissed as inadmissible and the decision was confirmed on appeal. The appeal court found that the German courts had no jurisdiction because Art 5(3) was inapplicable to an action for a negative declaration. During the further appeal on a point of law, the referring court asked the CJEU whether the jurisdiction in Art 5(3) also exists regarding an action for a negative declaration in which a potential injuring party asserts that the party potentially injured by a particular situation has no claim in tort/delict. After finding the question admissible, it considered the wording and aim of Art 5(3). It noted that an action for a negative declaration arises from the fact that the claimant is seeking to establish that the pre-conditions for liability, as a result of which the defendant would have a right of redress, are not satisfied. The CJEU agreed with AG Jӓӓskinen that such an action entails a reversal of the normal roles in matters relating to tort/delict, since the claimant is the party against whom a claim based on a tort/delict might be made, while the defendant is the party whom that tort or delict may have adversely affected. However, it stated that that reversal of roles does not exclude that action from Art 5(3)’s scope. By citing C 292/10 G and C 523/10 Wintersteiger, it affirmed that Art 5(3)’s aims of ensuring that the court with jurisdiction is foreseeable and preserving legal certainty are not connected either to the allocation of the respective roles of claimant and defendant or to the protection of either. The First Chamber decided that Art 5(3)’s aim is not protecting the weaker party and found that Art 5(3) is not contingent upon the potential victim initiating proceedings. Relating to lis pendens, it made a distinction between the applicant’s interest in an action for a negative declaration and in proceedings seeking to have the defendant held liable for causing loss and ordered to pay damages. It affirmed C 406/92 Tatry that an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action as an action brought by that defendant seeking a declaration that he is not liable for that loss. The CJEU did not follow the opinion of the AG and held that an action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict falls within the scope of Art 5(3).