The Brussels I Regulation (No 44/2001)

Jurisdiction derived from jurisdiction over another right of action [Article 6 and 7]

The provisions of the Brussels I Regulation point out the Member State of which the court has jurisdiction to hear and give a decision on a legal claim with an international element. It may confer jurisdiction on courts of the Member State where the defendant is domiciled (Article 2 BR I) and provide the plaintiff with an alternative forum where this is appropriate in view of the nature of the claim (Article 5 BR I).

It is also possible that mere practical reasons of good judicial procedure indicate that a court has jurisdiction over a claim, simply because it is in a formal way closely connected with another claim that has been instituted at that court in accordance with the rules for jurisdiction of the Brussels I Regulation. This is, for example, the case when the plaintiff wants two file a legal claim against two defendants, domiciled in different Member States. Article 6, point (1), of the Brussels I Regulation makes clear that, where a court of a Member State has jurisdiction over the claim against one of the defendants, this court automatically has jurisdiction where it concerns this claim against the other defendant, irrespective whether this court would otherwise have been assigned by the rules of the Brussels I Regulation as the court competent to hear this specific claim against that other defendant. Yet, this jurisdiction only exists if the claims between the two defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

In a similar way a court of a Member State may derive jurisdiction from the sole fact that the defendant in the proceedings before that court may summon a third party to the proceedings who can be held responsible by the defendant, in full or in part, for the claim that the plaintiff has instituted against the defendant (Article 6, point (2) BR I). Even when this third party otherwise, according to the rules of the Brussels I Regulation, could not have been sued before that court, the fact that his case is closely connected with the already pending case between two other parties makes the court that is hearing this last case competent.

When a defendant wants to file a counterclaim against the plaintiff, he must be able to do so in the same legal proceedings that the plaintiff has initiated against him, even if that court would not be the competent one according to the other provisions of the Brussels I Regulation. Article 6, point (3) BR I only demands that the counterclaim has arisen from the same contract or facts on which the original claim was based. If this requirement is fulfilled, the defendant may file his counterclaim at the court in which the original claim of the plaintiff (being the defendant against the counterclaim) is pending.

For similar reasons Article 6, point (4) BR I specifies that, when a court has jurisdiction to hear a claim relating to rights in rem in immovable property, it has jurisdiction as well over a claim relating to a contract against that same defendant.

Finally, a particular rule of this kind is laid down in Article 7 of the Brussels I Regulation. Where by virtue of this Regulation a court of a Member State has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that Member State, shall also have jurisdiction over claims for limitation of such liability. Again, the close connection between the different rights of action allows the court which, pursuant to the provisions of the Brussels I Regulation, has jurisdiction over one of the actions, to give a judgment on the other action.

Article 6 of the Brussels I Regulation

Index Article 6

• Two or more defendants to a single forum [Article 6, point (1)]
• Third party in third-party proceedings [Article 6, point (2)]
• Counterclaims arising from the same contracts or facts as the original claim [Article 6, point (3)]
• Combined actions regarding a contract and a right in rem in immovable property [Article 6, point (4)]

Two or more defendants to a single forum [Article 6, point (1) BR I]

Sometimes the plaintiff wants to file a legal claim against two or more defendants, for instance because they are both in full or partially liable for the same contract or tortious act. If all defendants are domiciled in the same Member State, the principle rule for jurisdiction of Article 2 BR I brings along that the plaintiff must address the courts of that Member State in order to call all defendants to court in one single case. The internal rules for (territorial) jurisdiction of that Member State will determine whether such a joint case is possible and, if so, which courts are offered for this purpose.

But what if one or more of the defendants are domiciled in a different Member State? In such a situation, where there is more than one defendant facing the same claim, the courts for the place where anyone of the defendants is domiciled have jurisdiction according to Article 6, point (1) BR I. It follows from the text of this Article that, where there are several defendants domiciled in different Member States, the plaintiff can, at his option, sue them all in the courts for the place where only one of them is domiciled.

Yet, in order for this rule to be applicable there must be a connection between the claims made against each of the defendants, as for example in the case of joint debtors (Jenard OJ 1979 C 59/26). The Court of Justice has held that Article 6, point (1) BR I requires that the actions brought by the plaintiff be related in such a way that dealing with them separately might result in irreconcilable judgments (ECJ 27 September 1988 ‘Kalfelis v Bankhaus Schröder’, Case 189/87). Article 6, point (1) BR I has been adapted to this point to codify that case-law (Proposal 2001 C 376E / 1-17), and to define what the relationship between the actions should be if it was to confer jurisdiction with respect to all the defendants on the courts of the domicile of one of them.

It may be pointed out that where there is more than one defendant, jurisdiction is based objectively on the close link between the actions, which has to be shown by the plaintiff, whereas in the case of an action on a warranty or guarantee or other third party proceedings no such close link is required. In its place, ‘the related nature of the main action and the action on a warranty or guarantee’ is enough (ECJ 15 May 1990 ‘Agentur Hagen v Zeehaghe’, C-365/88), irrespective of the basis on which the court has jurisdiction in the original proceedings, and this makes it advisable that there should be a provision safeguarding the defendant’s right to be sued in the court which would be competent in his case, even though it places on the defendant himself the burden of proving that he has been removed from it (Pocar OJ 2009 C 319/18).

From the Jenard Report already followed that an action cannot be brought solely with the object of expelling the jurisdiction of the courts of the State in which a defendant is domiciled (Jenard OJ 1979 C 59/26). It was not believed necessary, however, to codify this principle in Article 6, point (1) BR I. The close relation that must exist between the claims, together with the requirement that the court before which the matter was brought be the court of the domicile of one of the defendants (ECJ 27 October 1998 ‘Réunion v Spliethoff's (Case C-51/97), is sufficient to avoid the misuse of the rule. This consideration is not meant to imply that Article 6, point (1) BR I, may be interpreted in such a way that it would allow a plaintiff to bring an action against a plurality of defendants in the court competent for one of them with the sole purpose of removing the other defendants from their proper court (ECJ 13 July 2006 ‘Roche v Primus and Goldenberg’, C-539/03, ECJ 13 July 2006 ‘Reisch Montage v Kiesel’, C-103/05, par. 32 and ECJ 11 October 2007 ‘Freeport v Arnoldsson’, C-98/06, par. 54). Nevertheless, if an adequate connection exists, the plaintiff is able to avoid the courts of a specific Member State when one of the defendants is domiciled in another Member State.

It was neither considered necessary to include a provision in Article 6, point (1) BR I aimed at preventing the provision from being applied to defendants who have agreed a choice of forum clause with the plaintiff in accordance with Article 23 of the Brussels I Regulation. The exclusive jurisdiction provided for in Article 23 BR I has precedence over any other jurisdiction regulated by the Brussels I Regulation, subject only to the provisions indicated in Article 23, paragraph 5 BR I, so that there is no room for doubts of interpretation, and there is no reason to repeat the principle in a specific rule conferring jurisdiction (Pocar OJ 2009 C 319/18-19). The rule of special jurisdiction provided for in Article 6, point (1), of the Brussels I Regulation can neither be applied to a dispute falling under Section 5 of Chapter II of that Regulation concerning the jurisdiction rules applicable to individual contracts of employment (ECJ 22 May 2008 ‘Glaxosmithkline v Rouard’, C-462/06).

See also:

• More than one defendant (Article 6 (1)) (Jenard Report 1968)
• Article 6 (1) (Evrigenis Report 1986)
• Article 6 (1) Co-defendents (Jenard/Möller Report 1988)
• More than one defendant (Pocar Report 2007)

Third party in third-party proceedings [Article 6, point (2) BR I]

It’s possible that the defendant, against whom a legal action has been instituted, is able to take recourse, in the event that the court would award the claim against him, on someone who is not involved as a party in the initial proceedings between the defendant and the plaintiff. The plaintiff has merely sued the defendant as the person who is liable towards him. He has no right nor an interest to call this other person to the proceedings as well. If he had, he would immediately have filed a claim against two (or more) defendants in the meaning of Article 6, point (1) BR I. Now his claim is restricted to just this specific defendant.

After the defendant has been convicted in the initial proceedings to perform the claim of the plaintiff, he may start separate legal proceedings against the third person who is liable towards him, for instance on account of an indemnity agreement, a breach of contract with regard to the same goods that the defendant has delivered to the plaintiff or the (joint) responsibility of the third party for the tortious act that made the defendant liable towards the plaintiff. Often it’s more practical for the defendant to involve such a third party immediately in the initial proceedings between him and the plaintiff. Article 6, point (2) BR I provides this opportunity, even when the third party is not domiciled in the Member State where the initial proceedings take place. It indicates that a person domiciled in a Member State may also be sued (by the defendant) as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings.

This jurisdiction is of considerable importance in commercial dealings, as can be seen from the following example: A French exporter delivers goods to Belgium and the Belgian importer resells them. The purchaser sues the importer for damages in the court for the place of his domicile, for example in Brussels . The Belgian importer has a right of recourse against the French exporter and consequently brings an action for breach of warranty against that exporter in the court in Brussels, since it has jurisdiction over the original action. The jurisdiction over the action on the warranty is allowed by Article 6, point (2) of the Regulation, although the warrantor is domiciled in France, since this is in the interests of the proper administration of justice.

The defendant is, however, not allowed to involve the third party in the initial proceedings if this is done solely with the object of removing that third party from the jurisdiction of the court which would be competent in his case (see Article 6, point (2) BR I). To enable the entire dispute to be heard by a single court, Article 6, point (2) BR I simply requires there to be a connecting factor between the main action and the action on a warranty or guarantee or another ground, irrespective of the basis on which the court has jurisdiction in the original proceedings (ECJ 15 May 1990 ‘Agentur Hagen v Zeehaghe’ (Case C-365/88).

So if, in the previous example, the Belgian importer had resold the goods to a Belgian company, so that the jurisdiction of the Brussels’ court would have been established on the basis of internal Belgian law, the outcome would have been the same as when the Belgian importer would have resold the goods to a Dutch importer, in which event the Brussels’ court could have been seized on the basis of Article 2 BR I. In both situations Article 6, point (2) BR I grants the defendant (Belgian importer) the opportunity to call the French exporter as a third party to the initial proceedings before the Brussels' court. Of course, if the requirements of Article 5, point (1) BR I would be met, then the Dutch importer could also have chosen to sue the Belgian defendant before a court in the Netherlands. In that event, Article 6, point (2) BR I would have the effect that the Belgian importer may summon the French exporter to appear in the initial proceedings entertained before the Dutch court.

Although Article 6, point (2) BR I explicitly mentions the words ‘warranty’ or ‘guarantee’, it is not limited to situations in which the liability of the third party against the defendant is derived from such claims. The text of Article 6, point (2) BR I refers also to ‘any other third party proceedings’, so that it is applicable as well when the claim of the defendant against the third party is simply based on a breach of contract or indemnity in a tort case, provided that there’s sufficient connection between the initial proceedings and the third-party proceedings.

In a case where the third-party proceedings related to matters of insurance as covered by the provisions of Section 3 of Title II of the Brussels I Regulation, the Court of Justice decided that jurisdiction in matters of insurance is not to be determined solely on the basis of the before mentioned provisions of Section 3 of Title II, so that it can be based also on Article 6, point (2), of the Brussels I Regulation. The special provision of the Brussels I Regulation in Article 6, point (2), was regarded to be applicable to third-party proceedings between insurers based on multiple insurance, in so far as there is a sufficient connection between the original proceedings and the third-party proceedings to support the conclusion that the choice of forum, made on the basis of the provisions of the Brussels I Regulation, does not amount to an abuse. It is for the national court seised of the original claim to verify the existence of such a connection, in the sense that it must satisfy itself that the third-party proceedings do not seek to remove the defendant from the jurisdiction of the court which would be competent in the case (ECJ 26 May 2005 ‘GIE c.s. v Zurich’, C-77/04, see paras 32, 36, operative part 2).

Article 6, point (2) BR I plays no part when the third party has explicitly made a choice of forum in his agreement with the defendant and this forum is another than the one before which the defendant is sued. So when the agreement between the defendant and third party specifies that disputes between them always have to be settled by the courts of the Member State where the third party is domiciled, the defendant, against whom a legal action has been brought to court in another Member State, cannot appeal to Article 6, point (2), of the Brussels I Regulation to absorb the third party anyhow in the initial proceedings at the court of that other Member State. He is now bound by the contractual choice of forum as agreed upon with the third party, so that he has to start separate legal proceedings before a court of the Member State where the third party is domiciled.

The law of procedure of some Member States (Germany, Austria and Hungary) is not familiar with third-party proceedings in which a judgement can be given against a third party who is not a party to the initial proceedings. They apply a different system in which a third party cannot be sued to appear in the proceedings between two other parties facing the possibility that the court passes a judgment against him. Instead, these three Member States have a so called ‘notice procedure’, which allows the defendant, who has obtained a judgment in another case, to start a more simple procedure against the third party by virtue of national procedural law, which enables the defendant to make a judgment on the main claim, rendered in that other case, invocable against the third party without the necessity for the court to review the same matter all over again.

The Brussels I Regulation acknowledges the difficulties that may arise from this difference and makes clear in Article 65, paragraph 1 BR I that Article 6, point (2) BR I is inapplicable where it concerns initial proceedings entertained in Germany, Austria or Hungary. This means that a defendant who is sued before a German, Austrian or Hungarian court, is not able to summon a French or German person as a third party to those proceedings with the purpose of immediately obtaining a judgment against him. As an alternative, where it concerns a third person domiciled in another Member State, this person may be sued in the courts of Germany, Austria or Hungary, respectively, pursuant to the national rules for a notice procedure.

Judgments given against a third party in another Member State by virtue of Article 6, point (2) BR I, will nevertheless be recognized and enforced in Germany, Austria and Hungary. Judgments given in Germany, Austria or Hungary pursuant to the national provisions for notice procedures of these States will have the same effect in the other Member States as they have according to the law of civil procedure of Germany, Austria or Hungary (Article 65, paragraph 2 BR I).

Thus, for example, a third party domiciled in France can be sued in the German court having jurisdiction over the original action. The German law judgment given in Germany affects only the parties to the action, but, after a notice procedure has been ended successfully, it can be invoked against this third party as well. The judgment given in the German notice procedure against the French third party enables the defendant to ask the competent French court for recognition of the German judgment, and it will no longer be possible for the French court to re-examine that judgment as to the merits (Jenard OJ 1979 59/26-27).

See also:

• Actions on a warranty or guarantee, third party proceedings, counterclaims (Jenard Report 1968)
  • Actions on a warranty or guarantee (Article 6 (2))
  • Third party proceeding
• Third party proceedings and claims for redress (Schlosser Report 1979)
• Article 6 (2) (Evrigenis Report 1986)
• Special consideration regarding Spain: Actions on a warranty or guarantee (Almeida-Desantes Report 1990)
• Action on a warranty or guarantee (Pocar Report 2007)

Counterclaims arising from the same contract or facts as the original claim [Article 6, point (3) BR I]

A defendant, who has been sued by a plaintiff, often states during proceedings that he has a claim (as well) against the plaintiff. A Swedish seller, for instance, claims payment of the purchase price for pigs delivered by him in Germany to a Belgian buyer, whereas the Belgian buyer claims damages because the supplied pigs were ill and have infected his other livestock. When the Swedish seller wants to sue the Belgian buyer, he may choose for a Belgian court in accordance with the principle rule for jurisdiction of Article 2 of the Brussels I Regulation, or he may address himself to a German court on the basis of Article 5, point (1) BR I. If the Belgian buyer wants to initiate legal proceedings against the Swedish seller, he must file his lawsuit either at a Swedish court pursuant to Article 2 BR I or at a German court by virtue of Article 5, point(1) BR I. Let’s assume that the Swedish seller is the first to file a lawsuit and has chosen for a Belgian court. In that event the Belgian defendant is allowed to file his counterclaim against the Swedish seller in the same legal proceedings, thus before the Belgian court, even though he is to be regarded as the plaintiff for the counterclaim and he is domiciled in Belgium. This, nevertheless, is approved by Article 6, point (3) BR I, mainly for practical reasons. In order to establish this jurisdiction the counterclaim must be related to the original claim. Since the concept of related actions is not recognized in all legal systems, Article 6, point (3) BR I states that the counterclaim must arise from the same contract or from the facts on which the original claim was based (Jenard OJ 1979, C 59/28). This provision applies only to claims by defendants which seek the pronouncement of a judgment or decree against the plaintiff. It doesn’t apply to situations where a defendant raises, as a pure defence, a claim which he allegedly has against the plaintiff. The defences which may be raised and the conditions under which they may be raised are governed by national law (ECJ 13 July 1995 ‘Danværn v Schuhfabriken Otterbeck’ (Case C-341/93).

See also:

• Counterclaims (Article 6 (3)) (Jenard Report 1968)
• Article 6 (3) (Evrigenis Report 1986)

Combined actions regarding a contract and a right in rem in immovable property [Article 6, point (4)]

This provision has been taken directly from the text of the Lugano Convention 1988.

When a person has a mortgage on immovable property the owner of that property is quite often also personally liable for the secured debt. Therefore it has been made possible in some States to combine an action concerning the personal liability of the owner with an action for the enforced sale of the immovable property. This presupposes of course that the court for the place where the immovable property is situated also has jurisdiction as to actions concerning the personal liability of the owner.

It was agreed that it was practical that an action concerning the personal liability of the owner of an immovable property could be combined with an action for the enforced sale of the immovable property in those States where such a combination of actions was possible. Therefore it was deemed appropriate to include in the Convention [Regulation] a provision according to which a person domiciled in a Contracting State [Member State] also may be sued in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the Contracting State [Member State] in which the property is situated.

To illustrate, let us assume that a person domiciled in France is the owner of an immovable property situated in Norway [party to the Lugano Convention]. This person has raised a loan which is secured through a mortgage on his immovable property in Norway. In the eventuality of the loan not being repaid when due, if the creditor wishes to bring an action for the enforced sale of the immovable property, the Norwegian court has exclusive jurisdiction under Article 16, paragraph 1 Lugano Convention 1988 [Article 22 , point (1), of the Brussels I Regulation]. However, under Article 6, point (4) BR I this court also has jurisdiction as to an action against the owner of the property concerning his personal liability for the debt, if the creditor wishes to combine the latter action with an action for the enforced sale of the property.

The jurisdictional basis provided for by Article 6, point (4) BR I cannot exist by itself. It must necessarily be supplemented by legal criteria which determine on which conditions such a combination is possible. Thus the provisions already existing in or which in the future may be introduced into the legal systems of the Contracting States [Member States] with reference to the combining of the abovementioned actions remain unaffected by the Lugano Convention [Brussels I Regulation]. It goes without saying however that the combination of the two actions which Article 6, point (4) BR I deals with have to be instituted by the 'same claimant'. The 'same claimant' includes of course also a person to whom another person has transferred his rights or his successor (Jenard-Möller OJ 1988 C 189/75).

See also:

• Article 6 (4) (Almeida-Desantes Report 1990)
  • Article 6 (4) Combination of actions in rem and in personam (Jenard/Möller 1988)

Article 7 of the Brussels I Regulation

Jurisdiction on claims for limitation of liability which has arisen from the use or operation of a ship [Article 7 BR I]

Under Article 7 BR I, which was added by the 1978 Accession Convention as Article 6a to the 1968 Brussels Convention and converted to Article 7 in the present Regulation, a court with jurisdiction in actions relating to liability arising from the use or operation of a ship also has jurisdiction over claims for limitation of such liability. This makes it legally easier for ship-owners to limit their liability since they will be able to institute proceedings for such limitation before the courts of their place of domicile.

The International Convention of 10 October 1957 and the International Convention of 19 November 1976 relating to the limitation of the liability of owners of seagoing ships contain no express provisions directly affecting international jurisdiction or the enforcement of judgments. Although it was not felt that the Brussels I Regulation should provide for a regulation that deals systematically with the issues raised by these Conventions, it would, however, be particularly unfortunate in certain respects if the jurisdictional lacunae of these International Conventions on the limitation of liability were not filled by the Brussels I Regulation, especially with respect to Member States who are also a party to the two before mentioned Conventions.

A distinction needs to be drawn between three differing aspects arising in connection with the limitation of liability in matters of maritime law. First, a procedure exists for setting up and allocating the liability fund. Secondly, the entitlement to damages against the ship-owner must be judicially determined. Finally, and distinct from both, there is the assessment of limitation of liability regarding a given claim.

The procedural details giving effect to these three aspects vary in the different legal systems of the Community.

Under one system, which is followed in particular in the United Kingdom, limitation of liability necessitates an action against one of the claimants either by way of originating proceedings or, if an action has already been brought against the ship-owner, as a counterclaim. The liability fund is set up at the court dealing with the limitation of liability issue, and other claimants must also lodge their claims with the same court.

Under the system obtaining in Germany, for example proceedings for the limitation of liability are started not by means of an action brought against a claimant, but by a simple application which is not directed 'against' any person, and which leads to the setting up of the fund. If the application is successful, all claimants must lodge their claims with that court. If any disputes arise about the validity of any of the claims lodged, they have to be dealt with by special proceedings taking the form of an action by the claimant against the fund administrator, creditor or ship-owner contesting the claim. Under this system an independent action by the ship-owner against the claimant in connection with limitation of liability is also possible. Such an action leads not to the setting up of a liability fund or to an immediately effective limitation of liability, but merely establishes whether liability is subject to potential limitation, in case of future proceedings to assess the extent of such liability.

Article 7 of the Brussels I Regulation does not apply to an action by a claimant against the ship-owner, fund administrator or other competing claimants, nor to the collective proceedings tor creating and allocating the liability fund, but only to the independent action brought by ship-owner against a claimant. A ship-owner (or captain or charter) may want to start such an action to obtain a judicial decision effectuating that his liability will not exceed a certain value based on the tonnage of the ship. He may start such an action before the court which would be competent under the Brussels I Regulation to hear and determine the main action, which in general will be based on tort.

This enables the ship-owner to use his actual or potential limitation of the liability otherwise than as a defence. If a ship-owner anticipates a liability claim, it may be in his interest to take the initiative by asking for a declaration that he has only limited or potentially limited liability for the claim. In that case he can choose from one of the jurisdictions which are competent by virtue of Articles 2 to 6 of the Brussels I Regulation. According to these provisions, he cannot bring an action in the courts of his domicile. Since, however, he could be sued in those courts, it would be desirable also to allow him to have recourse to this jurisdiction. It is the purpose of Article 7 BR I to provide for this. Moreover, apart from the International Convention Relating to the Arrest of Sea-Going Ships (Brussels, May 10, 1952), this is the only jurisdiction where the ship-owner could reasonably concentrate all actions affecting limitation of his liability. The result for English law (see above) is that the fund can be set up and allocated by that same court. In addition, Article 7 BR I makes it clear that proceedings for limitation of liability can also be brought by the ship-owner in any other court which has jurisdiction over the claim. It also enables national legislations to give jurisdiction to a court within their territory other than the court which would normally have jurisdiction.

As said before, Article 7 BR I only serves the independent action brought by ship-owner against a claimant. Otherwise the other provisions of the Brussels I Regulation are relevant to limitation of maritime liability. For proceedings concerning the validity as such of a claim against a ship-owner, Articles 2 to 6 BR I are exclusively applicable. In addition, Article 28 BR I [related actions] is always applicable. If proceedings to limit liability have been brought in one State, a court in another State which has before it an application to establish or to limit liability may stay proceedings or even decline jurisdiction.

A clear distinction must be drawn between the question of jurisdiction and the question which substantive law on limitation of liability is to be applied. This need not be the law of the State whose courts have jurisdiction for assessing the limitation of liability. The law applicable for the limitation of liability also defines more precisely the type of case in which limitation of liability can be claimed at all (Schlosser OJ 1979 No C 59/110-111).

See also:

• Admiralty jurisdiction: Article 6a (Schlosser Report 1979)
• 2. Jurisdiction to order a limitation of liability
• Article 7 (Evrigenis Report 1986)