EUPillar G.R. v NV Common Market Meat Company - Antwerpen, 13 September 2010

Summary

The Sicilian supermarket chain Ce Di Sisa placed on order for 540 pig carcasses and 200 hams with NV Comeco, the defendant, on 30 September 2003. Ce Di Sisa said in its order that it assigned R.G., the appellant, as carrier. It was expressly stated that R.G. would ensure the carriage of goods for her [i.e., Ce Di Sisa’s] account. The goods were picked up by the appellant at the defendant’s residence. A CMR waybill was issued for delivery to Ce di Sisa in Carini, Italy. On 9 October 2003, Ce di Sisa placed a second order, which was also picked up and for which another waybill was issued. Ce Di Sisa owed a total amount of 100,235.61 EUR for the deliveries. On 15 October 2003, the defendant heard that Ce Di Sisa had issued a letter to all of its clients because a group of unknown persons operated a scam under Ce Di Sisa’s name. Since the defendant’s invoices still had not been paid, the defendant decided to contact Ce Di Sisa on 27 October 2007. It appeared that Ce Di Sisa never placed those orders and never had any commercial relationship with the appellant. The public prosecutor in Palermo was informed of the case. The appellant then re-contacted the defendant and showed documents issued by Ce Di Sisa, with the request to unload the goods on the market of Catania, where the goods vanished. The defendant holds the appellant accountable for the loss of the goods on the basis of Art. 12(7) CMR, or alternatively on the basis of Art. 17(1) CMR. On the facts of the case, the Court decides that the claim of the defendant against the appellant is unfounded, since the appellant was merely the carrier of the goods and there is no contractual connection between them. The defendant had an agreement with Ce Di Sisa. Alternatively, the defendant brought a claim against the appellant on the basis of Art. 1382 Belgian Civil Code [i.e. tort of negligence]. The appellant contests the jurisdiction of the Court since (i) the appellant is domiciled in Italy so that the Italian courts have jurisdiction pursuant to Art. 2 Brussels I and (ii) the harmful event within the meaning of Art. 5(3) Brussels I occurred in Italy. DECISION OF THE COURT In principle, the jurisdiction of the court must be determined according to the claim as described in the writ instituting the proceedings. In the original writ, the claimant had based its claim on purely contractual grounds. Its extra-contractual claim on the basis of Art. 1382 Belgian Civil Code was filed for the first time on appeal by way of written conclusions. This claim is completely new since it differs from the initial claim both in nature and legal ground. Therefore, the court must re-examine its jurisdiction as regards this new claim. A ground of special jurisdiction is provided in matters relating to tort for the courts for the place where the harmful event occurred (cf. Art. 5(3) Brussels I) (the “forum delicti commissi”). The concept of “matters relating to tort, delict or quasi-delict” must be regarded as an independent concept. It covers all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5(1). It must be understood as being intended to cover both the place where the damage occurred (the “locus acti”) and the place of the event giving rise to it (the “locus damni”). The defendant reproaches the appellant that he delivered the goods at the wrong place in Italy and that he, during the transport, did not check the destination. Therefore, both the locus acti and the locus damni are in Italy. The term does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Contracting State. The Court declines its jurisdiction. SHORT CRITIQUE The Court applies the following cases of the ECJ, without explicitly citing them: Case 189/87, Kalfelis, paras. 15-17; Case 21/76, Bier; Case 364/93, Marinari, para. 21.