EUPillar C-543/10 Refcomp SpA v Axa Corporate Solutions Assurance SA and Others (First Chamber)

Summary

This case on Art 23 of Brussels I was referred to the CJEU in French proceedings between Refcomp (with its registered office in Italy) and Axa Corporate (with its registered office in France), Axa France (established in France), Emerson (with its registered office in France) and Climaveneta (with its registered office in Italy). Doumer, a property developer company insured by Axa Corparate, had renovation work carried out on a building complex in France. Air conditioning units installed were equipped with compressors which were manufactured by Refcomp, fitted by Climaveneta, then sold to Doumer by the company Liebert to whose rights Emerson was subrogated. Emerson was insured by Axa France. The contract between Refcomp and Climaveneta included a jurisdiction clause in favour of the Italian courts. The air-conditioning system failed due to a defect in the manufacturing of the compressors. Axa Corporate paid compensation to Doumer, and then sued Refcomp, Climaveneta and Emerson in France seeking an order that they pay in solidum compensation for the damage suffered. Refcomp challenged the jurisdiction of the French courts, relying on the jurisdiction clause between it and Climaveneta. The court rejected the plea of lack of jurisdiction and this judgment was upheld on appeal. On a further appeal the Court of Cassation asked two questions of the CJEU. The first question was whether, under Art 23, the jurisdiction clause agreed in the contract concluded between the manufacturer and the buyer may be relied on against the third party sub-buyer. The CJEU noted that the wording of Art 23 does not indicate whether a jurisdiction clause may be transmitted, beyond the circle of the parties to a contract, to a third party but that it clearly indicates that its scope is limited to cases in which the parties have ‘agreed’ on a court. Considering its case-law on Art 17 of the Brussels Convention (in particular C-106/95 MSG and C-159/97 Castelletti) the CJEU observed that ensuring the real consent of the parties is one of the aims of Art 23(1). It stated that the jurisdiction clause incorporated in a contract may, in principle, produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract and in order for a third party to rely on the clause it is, in principle, necessary that the third party has given its consent to that effect. It however recognised that the conditions and the forms under which the third party may be regarded as having given his consent may vary in accordance with the nature of the initial contract. It considered its case-law where it assessed certain conditions and the forms under which the third party may be regarded as having given his consent as regards statutes of companies (C-214/89 Powell Duffryn), maritime transport contracts (71/83 Russ, C-159/97 Castelletti and C-387/98), and distinguished the present case. Agreeing with AG Jääskinen, it rightly held that a jurisdiction clause agreed in the contract concluded between the manufacturer of goods and the buyer thereof cannot be relied on against a sub-buyer who, in the course of a succession of contracts transferring ownership concluded between parties established in different MS, purchased the goods and wishes to bring an action for damages against the manufacturer, unless it is established that that third party has actually consented to that clause under the conditions laid down in Art 23. Accordingly, there was no need to answer the second question which asked whether the non contractual nature of the direct action granted by national law to the sub buyer of goods against the manufacturer of those goods is capable of influencing the effects of the jurisdiction clause.