Case number and/or case name
C-47/14 Holterman Ferho Exploitatie BV and Others v Friedrich Leopold Freiherr Spies von Büllesheim (Third Chamber)
Referring court and Member State
Netherlands, Third Instance, Hoge Raad der Nederlanden
Summary
The case was referred to the CJEU in Dutch proceedings between Holterman Ferho established in the Netherlands and its three subsidiaries established in Germany under German law, and Mr Spies, a German national domiciled in Germany, as regards his liability as manager of those companies and a claim that he be ordered to pay damages. Spies was also a shareholder. The CJEU confirmed C-548/12 that for any ground of jurisdiction under Brussels I to be the basis to exercise jurisdiction the conduct complained of by the applicant has to meet the standard whereby it “may be considered a breach of the obligations resulting from those provisions”. By its first question, the court asked whether Arts 18-21 of Brussels I applied. The CJEU stated that the connection between Spies and the company can be classified as an individual employment contract for the purpose of Art 18(1) if he can be considered as a worker for the purpose of Art 18(2). Following the Jenard-Möller Report the CJEU affirmed that an employment contract presupposes “a relationship of subordination of the employee to the employer” and that if Spies’ shareholding in the company was such that his “ability to influence” it was “not negligible” he would not be a worker. In its second question, the court asked whether an action brought by a company against its former manager on the basis of an alleged breach of his obligations under company law comes within the concept of matters relating to a contract and if so where it was performed. The CJEU stated that since there is an obligation freely assumed by one party towards another the action falls within matters relating to a contract. Regarding the place of performance, the CJEU noted that the activity concerned is classified as a provision of service under Art 5(1)(b), and that it in the absence of any derogating stipulation in the articles of association of the company, or in any other document, it is for the referring court to determine the place where Spies in fact, for the most part, carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as indicated by what was agreed. In its third question, the court asked whether the term ‘matters relating to tort, delict or quasi-delict’ in Art 5(3) must be interpreted as applying to a case such as the present and if so where is the place where the harmful event occurred. The CJEU ruled that Art 5(3) applies to all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Art 5(1) and that the action is a matter relating to tort/delict where the conduct complained of may not be considered to be a breach of the manager’s obligations under company law, that being a matter for the referring court to verify. The CJEU also held that it is for the referring court to identify, on the basis of the facts of the case, the closest linking factor between the place of the event giving rise to the damage and the place where the damage occurred. The answer to the third question is strange. It seems to imply that any breach of company law by a manager is a breach of contract rather than a delict but the reason why is not explained by the CJEU and the use of the word “between” seems to ask the referring court to find the single place that most closely links the place of the event giving rise to the damage and the place where the damage occurred. The CJEU intended that courts determine separately which jurisdiction is most closely linked to the delict as the place of the event giving rise to the damage and which is most closely linked to the delict as the place of damage and allow the claimant to choose to sue in either. In this case the place of the event giving rise to the damage may be the place where Spies carried out his duties as manager of the company and the place of damage is where the damage manifested itself first.