EUPillar C-548/12 Marc Brogsitter v Fabrication de Montres Normandes EURL and Karsten Fräßdorf (Seventh Chamber)

Summary

The case concerns the interpretation of Art 5(1) and 5(3) of Brussels I. It was referred to the CJEU in the German proceedings between Mr Brogsitter, domiciled in Germany, and Fabrication de Montres Normandes EURL, a company established in France, and Mr Fräβdorf, domiciled in Switzerland, concerning claims that Mr Brogsitter claimed to have suffered from conduct of the co-defendants allegedly amounting to unfair competition. Brogsitter, selling luxury watches, concluded a contract with a master watchmaker, Fräβdorf, for the development of movements for luxury watches, intended for mass marketing, on behalf of Brogsitter. Fräβdorf carried out his activity with the company of which he was sole shareholder and manager, ie Fabrication de Montres Normandes. In parallel to this work, the defendants had also developed other watch movements which then they exhibited in their own names at a world watch show and marketed in their own names and on their own behalf. Brogsitter claimed that those activities were a breach of contract because the defendants had undertaken to work exclusively for him and, therefore, might not do those activities involving watch movements, whether or not identical to those which were the subject of the contract. He sought an order before the German courts for those activities to be terminated and for damages to be awarded in tort on the basis of the German Law against Unfair Competition and the German Civil Code by submitting that the defendants breached business confidentiality, disrupted his business and committed fraud and breach of trust by their conduct. The defendants contested jurisdiction by arguing that only French courts had jurisdiction under Art 5(1) and (3) of Brussels I to determine all claims, as both the place of performance of the contract and of the allegedly harmful event were in France. The first instance court found that it had no jurisdiction. At appeal, the court held that the first instance court’s international jurisdiction derived from Art 5(3) to determine only the civil liability tort claims whereas the contractual claims should be brought before a French court under Art 5(1). The first instance court was uncertain whether civil liability claims made in tort under German law should not also be considered as concerning ‘matters relating to a contract’ under Art 5(1) and thus falling within the jurisdiction of the French courts. The court referred this question to the CJEU. The CJEU recalled that its case-law on the Brussels Convention is also valid for Brussels I as regards the equivalent provisions and cited its judgment in 189/87 where it found that the concept of ‘matters relating to tort, delict or quasi-delict’ under Art 5(3) covers all actions which seek to establish the liability of a defendant and which do not concern ‘matters relating to a contract’ under Art 5(1)(a). Citing C 167/00, the CJEU stated that the nature of civil liability claims is to be determined regardless of their classification under national law. It then observed that although the parties were bound by a contract, the mere fact that one contracting party brings a civil liability claim against the other is not sufficient to consider that claim concerning ‘matters relating to a contract’ under Art 5(1)(a). However, it also underlined and held that civil liability claims, which are made in tort under national law, must be considered as concerning ‘matters relating to a contract’ under Art 5(1)(a) where the conduct complained of may be considered a breach of contract, which is for the referring court to determine by taking into account the purpose of the contract. That will a priori be the case where the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or unlawful nature of the conduct complained of against the former by the latter.