Referring court and Member State
Austria, Third Instance, Oberster Gerichtshof
Summary
The case on Art 5(3) of Brussels I was referred to the CJEU in proceedings between Mr Kainz, residing in Austria, and Pantherwerke AG, an undertaking established in Germany, concerning a claim for damages suffered by Kainz on the basis of liability of Pantherwerke for a defective product. Kainz suffered a fall and was injured in Germany while he was riding a bicycle, manufactured in Germany by Pantherwerke and purchased from a retailer in Austria, because of an alleged manufacturing defect. He brought a claim in Austria based on liability for defective products and sought from Pantherwerke the payment for damages suffered, and a declaration of liability on the part of Pantherwerke for any future damage arising from the accident. He relied on Art 5(3) and claimed that the place of the event giving rise to the damage was located in Austria as the bicycle was brought into circulation there, in the sense that the product was there made available to the end user by way of commercial distribution. Pantherwerke alleged that the Austrian courts had no jurisdiction because the place of the event giving rise to the damage was located in Germany, and also the product had been manufactured and brought into circulation in Germany by being dispatched from its place of business. The court had dismissed the action on grounds of lack of jurisdiction and this was upheld by the appeal court. When the case reached the Supreme Court, it decided to refer some questions to the CJEU as regards the identification of the place of the event giving rise to the damage in relation to liability for defective products. The CJEU first noted that although, under Recital 7 to Rome II, the EU legislature sought to ensure consistency between Brussels I and the substantive scope and provisions of Rome II, it does not mean that the former is to be interpreted in the light of the latter. The CJEU reaffirmed its settled case-law that Brussels I must be interpreted independently, by reference to its scheme and purpose. The CJEU also reaffirmed that the special jurisdiction rules must be interpreted restrictively. It referred to its settled case-law in C 189/08 and C 170/12 that in the case where the place in which the event which may give rise to liability in tort, delict or quasi delict occurs and the place where that event results in damage are not identical, ‘place where the harmful event occurred’ in Art 5(3) covers both the place where the damage occurred and the place of the event giving rise to it and therefore the defendant may be sued, at the option of the claimant, in the courts for either of those places. The CJEU cited C-189/08 where it had found with regard to product liability that the place of the event giving rise to the damage is the place where the event which damaged the product itself occurred. It accordingly found that this is, in principle, the place where the product in question was manufactured. The CJEU did not agree with Kainz’s argument that the interpretation of special jurisdiction in matters relating to tort/delict/quasi delict must take into account not only the interests of the proper administration of justice but also those of the person sustaining the damage, thereby enabling him to bring his action before a court of the MS in which he is domiciled. The CJEU reaffirmed its finding in C-133/11 that Brussels I is specifically not designed to offer the weaker party stronger protection. It also noted that his argument that the place of the event giving rise to the damage is the place where the product in question was transferred to the end consumer or to the reseller does not guarantee that that consumer will, in all circumstances, be able to bring an action before the courts in the place where he is domiciled since that place may be elsewhere or even in another country. This was a correct interpretation of Art 5(3) and consistent with the settled CJEU case-law. The CJEU gave its judgment fairly quickly in this case in about 11.5 months.