Case number and/or case name
C-1/13 Cartier parfums - lunettes SAS and Axa Corporate Solutions assurances SA v Ziegler France SA and Others (Third Chamber)
Referring court and Member State
France, Third Instance, Cour de cassation
Summary
The case concerns the interpretation of Art 27(2) of Brussels I. It was referred to the CJEU in the French proceedings between Cartier parfums and its insurance company, ie Axa assurances, and the carrier companies of Ziegler France, Montgomery Transports, Inko Trade, Jaroslav Matĕja and Groupama Transport, concerning compensation for damage sustained by the claimants as a result of the theft of goods during their international transport by road from France to the UK. Cartier entrusted this transport to Ziegler France which subcontracted it to Montgomery Transports, which also itself subcontracted that service to Inko Trade which was, in turn, replaced by Jaroslav Matĕja. During the transport, the driver stopped in the UK to rest due to the legislation in force regarding the length of driving times but that night a part of the goods was stolen. Axa estimated the damage, compensated Cartier and then brought an action in France against the defendants seeking their joint and several liability for payment of the compensated amount. Ziegler raised a plea of lis pendens under Art 27 of Brussels I since it had already lodged a claim before the High Court in England against Cartier, Saflog and Wright Kerr Tyson Ltd, a company incorporated under English law, in order to determine liability and calculate the damage sustained by Cartier as a result of the theft. The claimants claimed that that plea was inadmissible under the French Code of Civil Procedure which required procedural objections to be raised before any defence on the merits. They also argued that the plea of lis pendens was unfounded because the jurisdiction of the English court, as the court first seised, had not been established under Art 27 and that the two disputes did not concern the same subject ¬matter or the same parties. The French court accepted the lis pendens plea and declined jurisdiction under Art 27 as regards the dispute between the defendants and Ziegler. As regards the other parties, it decided to stay its proceedings pending the English court judgment. This judgment was upheld. The defendants further appealed it by submitting that the jurisdiction of the High Court may be established under Art 27 only by a judgment from that court explicitly rejecting its lack of jurisdiction or by the exhaustion of the remedies that are available against its decision to assume jurisdiction. The referring court observed that the High Court was first seised and that the conditions relating to the same parties and subject-matter of the disputes were satisfied but asked the CJEU the scope of the expression ‘jurisdiction of the court first seised is established’ under Art 27(2) of Brussels I. The CJEU pointed out that Brussels I does not set out any circumstances regarding this under Art 27 and analysed the question by taking the overall scheme and the purpose of the Regulation into account in the light of Recitals to Brussels I, its relevant case-law on both Brussels I and the Brussels Convention and also the Jenard Report. The CJEU observed that the system established by Brussels I was devised to avoid prolonging the length of time for which proceedings were stayed by the court second seised, when, in reality, the jurisdiction of the court first seised may no longer be challenged. It also observed that the lis pendens rule aims also to avoid negative conflicts of jurisdiction. Thus, the CJEU held that the jurisdiction of the court first seised is established under Art 27(2) of Brussels I where the court second seised does not have exclusive jurisdiction under Brussels I, the court first seised has not declined jurisdiction of its own motion and none of the parties has contested that jurisdiction up to the time at which a position is adopted which is regarded by national procedural law as being the first defence on the substance submitted before that court. This is a wise and pragmatic way of resolving a problem in French academic opinion.