JUDGMENT OF 16. 12. 1980 — CASE 814/79 NETHERLANDS v RUFFER

In Case 814/79 REFERENCE to the Court under Article 3 of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the Hoge Raad der Nederlanden [Supreme Court of the Netherlands] for a preliminary ruling in the action pending before that court between

THE COURT composed of: J. Menens de Wilmars, President, P. Pescatore and T. Koopmans (Presidents of Chambers), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General : J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted to the Court

Question (a)

Question (b)

Question (c)

Question (d)

Question (e)

III — Oral procedure

Decision

The first question

The other questions

Costs

I —. Facts and procedure

1. On 26 October 1971 the motor vessel Otrate owned by Mr Reinhold Rüffer, residing in the district of Hameln/Pyrmont in the Federal Republic of Germany collided in the Bight of Watum with the Dutch motor vessel, Vechtborg and there sank.

2. The judgment making the reference was registered at the Court on 17 December 1979.

II —. Written observations submitted to the Court

1. The Netherlands State points out that the Wrakkenwet authorizes the agent responsible for administering a public waterway to remove any wreck constituting a danger or an obstacle to maritime navigation without having to do this with the agreement of the owner of the wreck or of the person having possession of it. The agent responsible for the administration of the public waterway is not always necessarily a public authority. When removing a wreck the agent does not therefore act by virtue of a power of a public character. The Wrakkenwet gives the agent, first, the right to recover the costs of removing the wreck from what remains of the vessel which has been removed. It further authorizes recourse against the person responsible for the sinking of the vessel but in this regard it refers to the basic provisions on restitution and liability which are those contained in the Civil Code.

2. Mr Kuffer thinks that Question (a) as well as Questions (b) and (c) may remain open since the Convention has no application in this case.

3. The Commission of the European Communities observes that there is no doubt that, under Netherlands law, when a wreck is removed the agent administering a public waterway acts by virtue of a specific public power which is conferred upon him in the public interest. However that does not necessarily mean that the bringing of a claim for redress as provided by the Wrakkenwet is also based on a specific public power. The bringing of that action may not be very much in the public interest but it still enables the burden of any untoward consequences of administration in the public interest to be passed on to the person liable in law. The liability in question comes under civil law.

1. The Netherlands State observes that the liability of the person, by whose fault or act a vessel has sunk, to indemnify the agent administering the public waterway against the costs incurred in removing the wreck is governed by Articles 1401 and 1403 of the Dutch Civil Code which deal with tort, delict and quasi-delict. There is therefore no doubt that, in Netherlands law, it must be classified as a liability in tort, delict or quasi-delict.

2. The Government of the United Kingdom wishes to submit observations only on the definition of the term matters relating to tort, delict or quasi-delict which is the subject-matter of Question (b).

3. The Commission points out that even if under Netherlands law the liability in question is treated as a tortious liability, that does not necessarily mean that that liability also falls under the concept used in Article 5 (3) of the Convention. The Court of Justice has not as yet ruled on whether the concept is to be regarded as an independent one or whether it draws its meaning from the corresponding concepts used in the different systems of national law. There is however a certain number of judgments of the Court regarding other concepts which appear in Article 5 of the Convention. It is apparent from those judgments that it is desirable to give an unequivocal and consistent meaning to the different concepts used in Article 5 of the Convention so that it is clear when a departure from the general rule laid down in Article 2 is permissible and so that equality of treatment may be ensured in this respect for all litigants in the different Member States; a concept may acquire a consistent character by being given an independent meaning: this is worth while if a concept has different meanings in each system of. national law; however, it is not always possible if those differences are too great because attaching an independent meaning to a concept in the Convention then involves too great an interference in the legal orders of the Member States, particularly in regard to concepts drawn from substantive law.

1. The Netherhnds State points out that this question presupposes that jurisdiction to entertain a claim such as is the subject-matter of the main action is not determined by the Ems-Dollard Treaty. The converse hypothesis is advanced by the Hoge Raad in Question (e) in which it mentions that the Court is not asked to interpret the Ems-Dollard Treaty.

(1). Does Article 5 (3) mean that the Netherlands courts may assume that the place where the harmful event occurred is (also) in the Netherlands?

(2). Is it necessary to take account of the fact that that place lies in the territory in which, pursuant to the Ems-Dollard Treaty, the Kingdom of the Netherlands is responsible for river-police functions?

2. The Commission first states that it is beyond doubt that the Convention also has application in the area covered by the Ems-Dollard Treaty since the area is indisputably part of the European territory of the Contracting States within the meaning of the first paragraph of Article 60 of the Convention and of the first paragraph of Article 6 of the Protocol of 1971 on the interpretation of that Convention. The question is therefore only whether the courts of a Member State which claims sovereign rights over the region in question may, for the purpose of applying the Convention, regard that area as forming part of the territory of its State in spite of the opposing claims of another Member State.

1. The Netherlands State says that the place where the event capable of giving rise to tortious liability occurred and the place where this event caused damage are not the same in the present dispute.

2. Mr Rüffer states that the place where the harmful event occurred can only be determined in this case in accordance with the Ems-Dollard Treaty.

3. Having referred back to the case-law of the Court on the definition of the term place where the harmful event occurred, the Commission asks whether it is conceivable in this case that the place where the damage occurred is not the same as the place of the causative occurrence.

1. The Netherlands State takes the view, if only on the basis of the wording of Article 57 of the Convention which states that this Convention shall not affect any conventions... which, in relation to particular matters, govern jurisdiction..., that the Convention does not cease to apply if another treaty creates certain types of jurisdiction. In other words, Article 57 does not preclude the alternative application of the rules of the Convention. The only exception would be where the other treaties in question intend to create an exclusive type of jurisdiction or make provision for rules which exclude any alternative application of those contained in the Convention.

2. Mr Ruffer replies to this question by saying that in his opinion the Ems-Dollard Treaty lays down rules of jurisdiction for claims brought pursuant to a collision in the mouth of the Ems and must therefore be regarded as a special convention within the meaning of Article 57 of the Convention which consequently has no application.

3. The Commission thinks that the Convention is superseded and may no longer be applied when a special convention within the meaning of Article 57 makes provision for rules of direct and exclusive jurisdiction.

III —. Oral procedure

1. By judgment of 14 December 1979 which was received at the Court on 17 December 1979 the Hoge Raad [Supreme Court] applied to the Court in proceedings based on Article 1 of the Protocol on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

2. That application was ordered in the course of a dispute concerning a claim for redress brought by the Netherlands State against a waterman, the owner of a German river motor vessel, the Otrate which on 26 October 1971 collided with the Dutch motor vessel Vechtborg in the Bight of Watum and as a result of that collision sank on the spot.

3. The Bight of Watum is a public waterway in the mouth of the Ems located in an area over which both the Kingdom of the Netherlands and the Federal Republic of Germany claim sovereign rights. Cooperation in that waterway between the two bordering States is governed by the Ems-Dollard Treaty of 8 April 1960. Article 19 (1) (a) of that Treaty provides that the Kingdom of the Netherlands shall be responsible, in the Bight of Watum and other places, for river-police functions which, under Article 20 (2) (d), include removal of wrecks. Article 21 of the same Treaty stipulates further that in carrying out river-police functions, each Contracting Party Commission shall be notified.

4. In accordance with that Treaty and on the basis of the provisions of the Netherlands Law on Wrecks of 19 June 1934 (hereinafter referred to as the Wrakkenwet) the Kingdom of the Netherlands had the wreck of the German boat which had sunk in the Bight of Watum removed by a Netherlands firm. The remains of the boat recovered in that way together with its cargo were sold pursuant to Article 6 of the Wrakkenwet by public auction in order that the Netherlands State might recover the costs involved in the removal of the wreck. After the proceeds of that sale were deducted from those costs a debit balance remained which the Netherlands State sought to recover from the waterman and owner of the boat in question by the claim for redress referred to above.

5. The District Court of the Hague before which the matter was brought at first instance declared that it had no jurisdiction to entertain the application. Its ground was the finding that owing to the German flag of the boat which sunk the place where the harmful event occurred, namely the wreck of the Otrate, must be regarded as the Federal Republic of Germany in this case so that jurisdiction to entertain the application lay with German courts by virtue of Article 5 (3) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as the Brussels Convention). The decision by that court was upheld by the Gerechtshof [Regional Court of Appeal] of The Hague and the Netherlands State appealed in cassation to the Hoge Raad of the Netherlands. Before ruling on the substance of the matter that court decided to submit several questions to the Court of Justice on the interpretation of the Brussels Convention.

6. In its first question the Hoge Raad asks the Court to state first of all whether the concept civil and commercial matters in Article 1 of the Convention must be construed as including a claim for redress such as that brought in the instant case by the Netherlands State.

7. It is apparent from the case-law of the Court (judgment of 14 October 1976 in Case 29/76 LTU [1976] ECR 1541; judgment of 14 July 1977 in Cases 9 and 10/77 Bavaria-Germanair [1977] ECR 1517; judgment of 22 February 1979 in Case 133/78 Gourdain [1978] ECR 733) that the concept “civil and commercial matters' used in Article 1 of the Brussels Convention must be regarded as an independent concept which must be construed with reference first to the objectives and scheme of the Convention and secondly to the general principles which stem from the corpus of the national legal sytems.

8. In the light of those considerations the Court has specifically held in that same case-law that whilst certain judgments given in an action between a public authority and a person governed by private law may come within the area of application of the Convention that is not the case if the public authority is acting in the exercise of its public authority powers.

9. Such a case is an action for the recovery of the costs involved in the removal of a wreck in a public waterway, administered by the State responsible in performance of an international obligation and on the basis of provisions of national law which, in the administration of that waterway, confer on it the status of public authority in regard to private persons.

10. It is common ground that in this case the Netherlands State had the wreck of the Otrate removed in performance of an obligation which was assumed under Article 19 (1) (a) and 20 (2) (d) of the Ems-Dollard Treaty within the framework of the river-police functions conferred on it in that waterway by the said Treaty and that consequently it acted in this case as the body invested with public authority.

11. The granting of such status to the agent responsible for policing public waterways, for the purpose of removing wrecks located in those waterways, is furthermore in keeping with the general principles which stem from the corpus of the national legal systems of the Member States whose provisions on the administration of public waterways precisely show that the agent administering those waterways does so, when removing wrecks, in the exercise of public authority.

12. In view of those factors the action brought by the Netherlands State before the national court must be regarded as being outside the ambit of the Brussels Convention, as defined by the concept of civil and commercial matters within the meaning of the first paragraph of Article 1 of that Convention, since it is established that the Netherlands State acted in the instant case in the exercise of public authority.

13. The fact that in this case the action pending before the national court does not concern the actual removal of the wreck but the costs involved in that removal and that the Netherlands State is seeking to recover those costs by means of a claim for redress and not by administrative process as provided for by the national law of other Member States cannot be sufficient to bring the matter in dispute within the ambit of the Brussels Convention.

14. As the Court has stated in the authorities cited above the Brussels Convention must be applied in such a way as to ensure, as far as possible, that the rights and obligations which derive from it for the Contracting States and the persons to whom it applies are equal and uniform. By that same case-law such a requirement rules out the possibility of the Convention's being interpreted solely in the light of the division of jurisdiction between the various types of courts existing in certain States: on the contrary it implies that the area of application of the Convention is essentially determined either by reason of the legal relationships between the parties to the action or of the subject-matter of the action.

15. The fact that in recovering those costs the administering agent acts pursuant to a debt which arises from an act of public authority is sufficient for its action, whatever the nature of the proceedings afforded by national law for that purpose, to be treated as being outside the ambit of the Brussels Convention.

16. For those reasons the answer to the first question must be that the concept of civil and commercial matters within the meaning of the first paragraph of Article 1 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters does not include actions such as that referred to by the national court brought by the agent responsible for administering public waterways against a person having liability in law in order to recover the costs incurred in the removal of a wreck carried out by or at the instigation of the administering agent in the exercise of its public authority.

17. The other questions were submitted by the national court in case the answer to the first question were in the affirmative. As the answer to that question is in the negative there is no further point in considering them.

On those grounds, THE COURT, in answer to the questions referred to it by the Hoge Raad by judgment of 14 December 1979, hereby rules: