On March 8 2005 the High Court dismissed proceedings against a German retailer on the grounds that neither Article 5(1) nor Article 5(3) of the Brussels I Regulation (44/2001) gave it jurisdiction to deal with the matter. The court followed the decision of the European Court of Justice (ECJ) in Kalfelis v Schröder (1988 ECR 5565) in ruling that it had no jurisdiction as the root of the plaintiff's action against the German retailer related to a contract concluded in Nuremberg, Germany.
The plaintiff in Patrick Burke v UVEX Sports GmbH (2003/4850P), an Irish citizen, stated that in August 1999 he bought a motorcycle helmet with a visor fitted to it from second defendant Motorrad's shop in Nuremberg. The helmet and visor were made by UVEX. On May 5 2000, near Cashel, County Tipperary, he skidded while riding his motorcycle and crashed into a ditch. He claimed compensation for injuries caused when the helmet visor splintered in the crash.
Brussels I Jurisdiction Clauses
The plaintiff claimed that the Irish High Court had jurisdiction to determine his complaint under the provisions of Article 5(1) and Article 5(3) of the regulation. Article 5(1) provides that a person domiciled in a member state may be sued in another member state:
"(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be
- in the case of the sale of goods, the place in a [m]ember [s]tate where, under the contract, the goods were delivered or should have been delivered..."
Shortly before a jurisdiction challenge was to be brought to the court, the claim that the court had jurisdiction by virtue of Article 5(1) was withdrawn. The helmet had been bought in Nuremberg, where the plaintiff took delivery of it. Under Article 5(1) it was the German courts rather than the Irish courts that had jurisdiction. However, there remained the question of the provisions of Article 5(3).
Article 5(3) states that a person domiciled in a member state may, in another member state, be sued "in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur". The plaintiff sought to rely on the fact that the tort occurred in Ireland, where he was injured by the alleged splintering of the helmet visor.
The court, however, rejected this as untenable. The judge applied the ECJ decision in Kalfelis v Schröder and found that, even if the plaintiff's claim were pleaded exclusively in tort, the court would be unable to accept jurisdiction by virtue of Article 5(3) as the relationship with Motorrad would be one of contract. The judge cited the ECJ when finding that he had no discretion in the matter. He held that, irrespective of the fact that the plaintiff was seeking a remedy solely in tort, he could not overlook the existence of a contract, however basic it might be. He said that the phrases "matters relating to a contract" and "matters relating to tort", in Article 5(1)(a) and Article 5(3) respectively, must be given an autonomous or independent EU meaning and may not be interpreted simply by reference to the national law of the member state of one or other of the parties. This is to ensure the uniform application of the scheme of the regulation throughout the European Union.
The Irish court rejected jurisdiction on the basis that the Brussels I Regulation must be interpreted strictly to ensure uniformity of application among the member states. As Germany was the place of delivery of the helmet, the place where the retailer resided, the plaintiff should have brought his action in Germany. The court declined jurisdiction notwithstanding the plaintiff's fear that he may now be out of time to bring court proceedings in Germany.
This case demonstrates how product liability complaints may be successfully defended on procedural and jurisdictional grounds.
The plaintiff's claim against Motorrad was dismissed. His claim against UVEX is unaffected by the order and is continuing.
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Under the equal treatment principle, as stated in Article 3 of the Law on Direct Foreign Investments, foreign investors can freely establish the same types of companies as Turkish citizens.
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