Remember Réunion Européenne? Think Again! (ECJ C-98/06, Freeport/Arnoldsson)

It’s official; dozens of private international law commentators, including such luminaries as professors Briggs (UK), Gaudemet-Tallon (France) and Geimer (Germany), have for years completely misread the ECJ. At least, that is what the Court’s Third Chamber suggests in last week’s ruling in Case C-98/06, Freeport/Arnoldsson. According to the new judgment, when the Court said, in its classic Brussels Convention decision in Réunion Européenne and others that:

“two claims in one action for compensation, directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected”,

it didn’t actually mean that

“two claims in one action for compensation, directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected”.

Right. Of course. So, what is really going on?

The heart of the controversy is a single paragraph in the ECJ’s 1998 judgment Réunion Européenne and others. Although the questions referred to the ECJ by the French Cour de cassation in that case did, in fact, only concern articles 5(1) and 5(3), the ECJ, almost in passing, offered a sweeping statement on art. 6(1) of the (then) Brussels Convention on jurisdiction over multiple defendants at the domicile of one of them. The Cour de cassation’s reference did not touch upon art. 6(1), probably because the court was keenly aware of the fact that as the relevant proceedings were not brought in the court of the domicile of one of the defendants, that article could never apply. The Cour de cassation did, however, want to ask the ECJ more generally to rethink its narrow conception of when a single court could take jurisdiction over several related claims, in particular as French private international law allowed joinder of claims in many more cases. ‘We know’, the French court seems to say, ‘of the strict Convention requirements for jurisdiction over multiple defendants when cases are merely related, but could you allow an exception for cases where, quote: “the dispute is indivisible, rather than merely displaying a connection?”

The ECJ began by pithily remarking that "the Convention does not use the term `indivisible' in relation to disputes but only the term `related'" (par. 38). The Court went on to refer to art. 6(1) as one of the articles that allow defendants to be sued in the courts of another Contracting state than the one in which they are domiciled. This article could not apply because the proceedings in question had not been brought before the courts for the place where one of the defendants was domiciled (par. 44-45). The acknowledged inapplicability of art. 6(1), however, did not stand in the way of the following general statement on the provision:

"48 (...) the Court held in Kalfelis that, for Article 6(1) of the Convention to apply there must exist between the various actions brought by the same plaintiff against different defendants a connection of such a kind that it is expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.

49 In that connection, the Court also held in Kalfelis that a court which has jurisdiction under Article 5(3) of the Convention over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based.

50 It follows that two claims in one action for compensation, directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected."

The ruling in Réunion was condemned almost immediately and virtually universally. Briggs and Rees labeled the decision as “extraordinary and, one is driven to conclude, simply wrong” (Civil Jurisdiction and Judgments 2002, 175) and Gaudemet-Tallon called the Court’s conclusion “trop catégorique” (Rev. crit. Dr. int. priv. 1999, 339). Courts in different Member States took divergent approaches to the unwelcome statement in Réunion. The English Court of Appeal, for example, in Brian Watson v. First Choice Holidays (25 june 2001, [2002] I.L.Pr. 1) said:

“It seems to us that, although paragraph 50 of Réunion Européenne is undoubtedly clear, the full implications of the position there set out may possibly not have been considered by the Court”.

The Court of Appeal did ultimately refer a question on Réunion’s paragraph 50 to the ECJ, but that reference was withdrawn. In other cases, courts took creative courses of action such as characterizing claims according to national law (rather than according to autonomous European standards, as usually required) (see English High Court, Andrew Weir Shipping v. Wartsila UK and Another, 11 june 2004, [2004] 2 Lloyd’s Rep. 377). Other courts, such as the French Cour de cassation ignored Réunion completely (Société Kalenborn Kalprotect v. Société Vicat and others, ). During all of this, only the Irish High Court, as far as I’m aware, at one point explicitly indicated that there was no suggestion that the ECJ in Réunion had had the “radical intention” of laying down a broad principle (Daly v. Irish Group Travel, 16 May 2003, [2003] I.L.Pr. 38).

And now we have Freeport/Arnoldsson:

"43 As the Commission has rightly pointed out, that judgment [Réunion] has a factual and legal context different from that of the dispute in the present main proceedings. Firstly, it was the application of Article 5(1) and (3) of the Brussels Convention which was at issue in that judgment and not that of Article 6(1) of the Convention.

44 Secondly, that judgment, unlike the present case, concerned overlapping special jurisdiction based on Article 5(3) of the Brussels Convention to hear an action in tort or delict and special jurisdiction to hear an action based in contract, on the ground that there was a connection between the two actions. In other words, the judgment in Réunion Européenne and Others relates to an action brought before a court in a Member State where none of the defendants to the main proceedings was domiciled, whereas in the present case the action was brought, in application of Article 6(1) of Regulation No 44/2001, before the court for the place where one of the defendants in the main proceedings has its head office.

45 It was in the context of Article 5(3) of the Brussels Convention that the Court of Justice was able to conclude that two claims in one action, directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected (Réunion Européenne and Others, paragraph 50).

47 Having regard to the foregoing considerations, the answer to the first question must be that Article 6(1) of Regulation No 44/2001 is to be interpreted as meaning that the fact that claims brought against a number of defendants have different legal bases does not preclude application of that provision."


I can only say, with all due respect: if you say so. Because this reading of Réunion seems to me, again with all due respect, fairly implausible. As to the substance, the clarification/reversal of the infamous paragraph 50 is, on the whole, to be welcomed. But Freeport/Arnoldsson does create new questions and leaves many old ones still unanswered. If the contract/delict divide is abandoned (at least as a rigid rule), it would seem to follow that national courts will have significantly more leeway when assessing possible jurisdiction over multiple defendants, based on art. 6(1). This discretion seems all the more considerable given that the Court, elsewhere in its new judgment, rejects a basic notion of ‘abuse’. This would seem to mean that a claim against a defendant potentially liable for 99% of all damages at the domicile of a co-defendant potentially liable for the remaining 1% will be allowed under the Brussels Regulation. It seems likely that the Court will, over the coming years, have to revisit this vexed issue.

Note: I discuss jurisdiction over multiple defendants in more detail in a 2005 book, entitled Judicial Discretion in European Law on Conflicts of Jurisdiction. SDU Publishers, The Hague).

Note: This post was reproduced - with comments - on www.conflictoflaws.net.

"An island in the sea of international law": US exceptionalism in criminal law - and in quite a lot else...

A piece by Adam Liptak in today's International Herald Tribune on life inprisonment for teenage offenders has some very interesting statements on US legal exceptionalism. Liptak refers to a recent UN resolution against life inprisonment without parole for young offenders - to which the United States were the lone dissenter. Based on interviews with Yale's James Q. Whitman and other experts, Liptak writes of a comparison between US and European approaches to juvenile offenders:

"Comparing legal systems is difficult, in part because the United States is a more violent society and in part because many other nations imprison relatively few people and often only for repeat violent offenses.

The differences in the two approaches, (...) , are rooted in politics and culture. The European systems emphasize rehabilitation, while the American one stresses individual responsibility and punishment. (...) The American legal system is more responsive to popular concerns about crime and attitudes about punishment, while justice systems abroad tend to be administered by career civil servants rather than elected legislators, prosecutors and judges.

In its sentencing of juveniles, as in many other areas, the legal system in the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States is an island in the sea of international law".

"To paint everything, to write everything and to say everything..."

Yesterday, as the NY Times reports, it was 50 years ago that Alen Ginsberg's poem Howl was ruled to have “redeeming social importance” and therefore not to be obscene by San Francisco Municipal Judge Clayton W. Horn. There are interesting audiocasts online of Ginsberg reading Howl (+ an extended discussion of free speech issues today) and of Lawrence Ferlinghetti discussing Howls' publication and the ensuing obscenity charges on the ACLU website.

The Howl saga invites comparison with Judge Spielmann's dissent to the European Court of Human Right's judgment in Muller v. Switzerland (1988). Muller concerned the exposition of paintings in Switzerland that were labeled obscene. The Criminal Cassation Division of the Swiss Federal Court, dismissing an appeal by the artist against obscenity charges and seizure of his paintings, held:

"The decided cases show that for the purposes of Article 204 of the Criminal Code, any item is obscene which offends, in a manner that is difficult to accept, the sense of sexual propriety; the effect of the obscenity may be to arouse a normal person sexually or to disgust or repel him. ... The test of obscenity to be applied by the court is whether the overall impression of the item or work causes moral offence to a person of ordinary sensitivity ...
The paintings in issue show an orgy of unnatural sexual practices (sodomy, bestiality, petting), which is crudely depicted in large format; they are liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity. The artistic licence relied on by the appellant cannot in any way alter that conclusion in the instant case.
The content and scope of constitutional freedoms are determined on the basis of the federal law currently in force. This applies inter alia to freedom of the press, freedom of opinion and artistic freedom; under Article 113 [of the Federal Constitution], the Federal Court is bound by federal enactments ... In the field of artistic creation [it] has held that works of art per se do not enjoy any special status ... A work of art is not obscene, however, if the artist contrives to present subjects of a sexual nature in an artistic form such that their offensiveness is toned down and ceases to predominate ... In reaching its decision, the criminal court does not have to view the work through an art critic’s spectacles (which would often ill become it) but must decide whether the work is liable to offend the unsuspecting visitor.
Expert opinion as to the artistic merit of the work in issue is therefore irrelevant at this stage, though it might be relevant to the decision as to what action to take in order to prevent fresh offences (destruction or seizure of the item; Art. 204 § 3 CC ...)".

In his Dissent accompanying the ECHR's ruling that no violation of Article 10 of the European Convention (freedom of expression) had occurred, Judge Spielmann made extensive references to the litigation following the publication of Baudelaire's Les Fleurs du Mal. The judgment of the Criminal Chamber of the Seine Regional Court in that case is from 1857 - exactly 150 years ago.

The public prosecutor in that case argued:

"Gentlemen, ..., I say to you: take a stand by your judgment in this case against these growing, unmistakable tendencies, against this unhealthy fever which seeks to paint everything, to write everything and to say everything, as though the crime of offending public morality had been abolished and that morality no longer existed".

Baudelaire's lawyer countered:

"Gentlemen, change this into prose, delete the rhyme and the caesura, grasp the substance of this powerful and vivid language and the underlying intentions; and tell me if we have ever heard this language being delivered from the Christrian pulpit, from the lips of some fiery preacher; tell me if the same thoughts would not be found, perhaps sometimes even the same expressions, in the homilies of some strict and unsophisticated father of the Church".

On 31 May 1949, the Paris Court of Cassation quashed the condemnation. Baudelaire had by then been dead for 80 years. Josef Felix Muller had to wait for 7 years to get his seized paintings back. Today, 50 years after Judge Horn's courageous decision, American radio stations are too afraid of sanctions to actually broadcast readings of Howl. Fortunately, the internet offers some reprieve - not yet available to Baudelaire and Muller - but isn't it troubling to see how easily some lessons are forgotten?