Opinion of Advocate General Darmon

Mr President,

Members of the Court,

1. By order of 25 May 1993 the Bundesgerichtshof refers to the Court for a preliminary ruling four questions on the interpretation of Articles 13 and 14 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter the Convention) as amended on 9 October 1978. Three of the questions are identical in content with those referred by the Bundesgerichtshof in the Shearson Lehman Hutton case.

2. The facts of the case may be summarised briefly. Two private individuals, Mr Brenner and Mr Noller, not acting in connection with their profession or occupation, commissioned the broking firm of Dean Witter Reynolds Inc., established in the United States of America, with the implementation of commodity futures transactions. That firm has an agency in Frankfurt am Main, Dean Witter Reynolds GmbH, which advertises for it, but the contract between the parties was mediated exclusively by Metzler Wirtschaftsund Börsenberatungsgesellschaft mbH, a company which is independent of Dean Witter Reynolds Inc.

3. The result of the investments made by that firm on behalf of the plaintiffs in the main proceedings was that, following speculative transactions, they lost almost all the capital provided. Mr Brenner and Mr Noller therefore brought proceedings for compensation against the broking firm, seeking repayment of the sums lost; they claimed on the basis of breach of contractual and precontractual obligations, tortious conduct in connection with inflating charges by carrying out a large number of sometimes unreasonable transactions (churning), and unjust enrichment.

4. The Landgericht, at first instance, held that it lacked jurisdiction, and its decision was upheld on appeal. The plaintiffs in the main proceedings thereupon appealed on a point of law to the Bundesgerichtshof, which now seeks a preliminary ruling from the Court on its jurisdiction with respect to the first paragraph in fine of Article 14 of the Convention where, as in the present case, the other party to the contract is domiciled in a non-Contracting State and no branch, agency or other establishment has acted as an intermediary in the conclusion or performance of the contract.

5. The other, subsidiary, questions essentially ask the Court for an interpretation of the following terms:

6. I have already considered those questions in my Opinion in the Sbearson Lehman Hutton case. The Court did not, however, answer them since it considered, as I had suggested, that

7. The Court thus considered that the assignee of a claim acting in the course of his professional activity could not rely on the protective rules of Article 13 which the assigning consumer could have relied on.

8. The present case, on the other hand, according to the findings of the national court, in fact concerns two consumers who each concluded with a company established in a non-Contracting State a contract on a commission basis for the purpose of carrying out commodity futures transactions. The preliminary question to be answered in this case is that of the determination of the scope of the provisions on jurisdiction over consumer contracts in Section 4 of Title II of the Convention.

9. I may state straight away that in my opinion, where, as in the present case, the defendant is not domiciled within the Community and no branch, agency or other establishment has acted in the conclusion and/or performance of the contract, the national court can apply only its own rules on jurisdiction, with the effect that it is not only one of the two alternatives in the first paragraph of Article 14 which is inapplicable, but the whole of Section 4.

10. The Brussels Convention is not intended to regulate jurisdictional disputes which may arise between courts in a Contracting State on the one hand and those in a non-Contracting State on the other hand. As the Jenard Report states,

11. The Evrigenis and Kerameus Report on the accession of the Hellenic Republic to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters similarly states that:

12. The first paragraph of Article 4 of the Convention indeed provides that:

13. Although Article 4 does not say so, other provisions in addition to Article 16 apply even where the defendant is domiciled in a non-Contracting State.

14. That is the case where jurisdiction is based on an agreement conferring jurisdiction within the meaning of the first paragraph of Article 17, since in such a case the parties have by joint agreement chosen to embed the case in the Community legal order. It suffices here if one of them is domiciled in a Contracting State.

15. Similarly, Article 18 deals with the case of a defendant who enters an appearance before a court of a Contracting State, where he does not contest its jurisdiction and there is no conflict with the provisions of Article 16.

16. Article 21 also applies independently of any condition as to domicile. The Court held in the Overseas Union Insurance and Others judgment that

17. However, the plaintiff cannot be allowed to rely on the rules on jurisdiction in Section 4 if the defendant is not domiciled in a Contracting State and the conditions in the second paragraph of Article 13 are not fulfilled.

18. As Article 13 states,

19. The express reference to Article 4 in the first paragraph of Article 13 is thus a reminder that the scope of Articles 13 to 15 is limited to cases where the defendant is domiciled in a Contracting State.

20. In the circumstances the rules on jurisdiction set out in the Convention do not apply to proceedings such as those pending before the national court, with the consequence that the rules of the lex fori on international jurisdiction remain applicable. In such a case the consumer must rely on those rules, including those which derogate from the ordinary law.

21. As Gothot and Holleaux write,

22. In proceedings concerning consumer contracts, the only exception to the rule in Article 4 is introduced by the second paragraph of Article 13, which applies where the party with whom the consumer contracts is domiciled in a non-Contracting State but has a branch, agency or other establishment in a Contracting State which represents him and can bind him vis-à-vis third parties; that is not the case here.

23. As Professor Kaye writes,

24. I note, however, that even if that condition were fulfilled Articles 13 to 15 would still not apply, since the proceedings would not be international for the purposes of the Convention, as Dean Witter Reynolds GmbH and Mr Brenner and Mr Noller would be domiciled in the same Contracting State.

25. It was stated by Droz, in his work cited above, that

26. Similarly, in her commentary on the Court's judgment in the Shearson Lehman Hutton case, Gaudemet-Tallon also considers that

27. The main proceedings are therefore not covered by the rules on direct jurisdiction in the Convention, more particularly those in the first paragraph of Article 14.

28. There is therefore no need to answer the subsidiary questions.

29. That is, moreover, the approach adopted by the Court in the judgment in Shearson Lehman Hutton. I dealt with them in my Opinion, on an alternative basis. I will therefore restrict myself to referring to my observations in that Opinion in case the Court, contrary to my conclusion, considers that Article 14 of the Convention does apply here.

30. Accordingly, I propose that the Court hold that Article 14 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters is not applicable where the proceedings are brought by a consumer in a Contracting State against the other party to the contract who is domiciled in a non-Contracting State, where the conditions in the second paragraph of Article 13 are not fulfilled. In any event, the latter provision is not applicable, for want of a foreign element, where the branch, agency or other establishment of a company based in a non-Contracting State is situated on the territory of the same Contracting State as that in which the consumer is domiciled.

1 Original language: French.

2 OJ 1978 L 304, p. 1.

3 Case C-89/91 Shearson Lehman Himon [1993] ECR I-139.

4 Page 6 of the order for reference.

5 Paragraph 24 and operative part.

6 That section originally related only to the sale of goods on instalment credit terms and to loans expressly made to finance the sale of goods and repayable by instalments. Its scope was extended by the amendment in 1978.

7 OJ 1979 C 59. p. 1.

8 Page 13.

9 Ibid.

10 OJ 1986 C 298. p. 1.

11 Paragraph 44.

12 See Gaudemet-Tallon, H: Les conventions de Bruxelles et de Lugano, LGDJ, 1993, point 79. See also Droz: Competence judiciaire et effet des jugements dans le marché cornmun, Dalloz, 1972, point 228 et seq; Gothot and Holleaux: La Convention de Bruxelles du 27 septembre 1968, Jupiter, 1985, point 35 et seq.

13 Case C-351/89 [1991] ECR I-3317.

14 Paragraph 18.

15 With reference to the last point, note that the national court considers that no branch, agency or other establishment within the meaning of the second paragraph of Article 13 ... has acted as an intermediary in the conclusion or performance of the contract (p. 6 of the order for reference).

16 My emphasis.

17 See, inter aha, Lasok and Stone: Conflict of Laws in the European Community, Professional Books Limited, 1987, p. 228.

18 Cited in note 11 above.

19 Point 35, p. 20.

20 Civil Jurisdiction and Enforcement of Foreign Judgments, Professional Books Limited, 1987.

21 Pages 842 and 843, my emphasis.

22 Point 30.

23 Revue critique de droit international privé, 1993, p. 325, at p. 330.

24 Paragraph 73 et seq.