Judgment of the Court (First Chamber)

25 October 2012 ( *1 )

‛Area of freedom, security and justice — Jurisdiction in civil and commercial matters — Special jurisdiction in tort, delict or quasi-delict — Action for a negative declaration (‘negative Feststellungsklage’) — Whether a person alleged to have committed a harmful act may bring a person who might be adversely affected before the courts with jurisdiction for the place where the act allegedly occurred or may occur, seeking a declaration that there is no liability in tort or delict’

In Case C-133/11,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Germany), made by decision of 1 February 2011, received at the Court on 18 March 2011, in the proceedings

Folien Fischer AG,

Fofitec AG

v

Ritrama SpA,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet, J.-J. Kasel, M. Safjan (Rapporteur) and M. Berger, Judges,

Advocate General: N. Jääskinen,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 15 February 2012,

after considering the observations submitted on behalf of:

—

Folien Fischer AG and Fofitec AG, by G. Jaekel, Rechtsanwalt,

—

Ritrama SpA, by J. Petersen, Rechtsanwalt,

—

the German Government, by T. Henze and J. Kemper, acting as Agents,

—

the French Government, by G. de Bergues and B. Beaupère-Manokha, acting as Agents,

—

the Netherlands Government, by C. Wissels and B. Koopman, acting as Agents,

—

the Polish Government, by M. Szpunar, acting as Agent,

—

the Portuguese Government, by L. Inez Fernandes, acting as Agent,

—

the Swiss Government, by D. Klingele, acting as Agent,

—

the European Commission, by W. Bogensberger and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 April 2012,

gives the following

Judgment

1

This reference for a preliminary ruling concerns the interpretation of point (3) of Article 5 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

2

The reference has been made in proceedings between, on the one hand, Folien Fischer AG (‘Folien Fischer’) and Fofitec AG (‘Fofitec’), established in Switzerland, and, on the other, Ritrama SpA (‘Ritrama’), established in Italy, concerning the application submitted by Folien Fischer and Fofitec for a negative declaration, relating to the absence of liability in tort or delict in competition matters.

Legal context

3

It is apparent from recital 2 in the preamble to Regulation No 44/2001 that the regulation aims, in the interests of the proper functioning of the internal market, to put in place ‘[p]rovisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation’.

4

Recital 11 to that regulation states:

‘The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.’

5

Recital 12 to Regulation No 44/2001 states:

‘In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.’

6

Recital 15 to Regulation No 44/2001 states:

‘In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. ...’

7

According to recital 19 to that regulation:

‘Continuity between the [1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (“the Brussels Convention”)], and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation of the Brussels Convention by the Court of Justice …’

8

The rules of jurisdiction are set out in Chapter II of Regulation No 44/2001, in Articles 2 to 31.

9

In Section 1 (‘General provisions’) of Chapter II of Regulation No 44/2001, Article 2(1) provides:

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

10

In the same section of that regulation, Article 3(1) provides:

‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

11

In Section 2 (‘Special jurisdiction’) of Chapter II of Regulation No 44/2001, Article 5(3) provides:

‘A person domiciled in a Member State may, in another Member State, be sued:

...

3.

in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

12

Under Article 27 of Regulation No 44/2001:

‘1.   Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2.   Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’

The dispute in the main proceedings and the question referred for a preliminary ruling

13

Folien Fischer, a company established in Switzerland, develops, manufactures and sells laminated paper goods and adhesive film. It distributes base material for continuous card forms in Germany among other places.

14

Fofitec, which also has its registered office in Switzerland and is part of the Folien Fischer group of companies, holds several patents protecting special forms for sending a letter together with, inter alia, a membership card, and the base material for those card forms.

15

Ritrama, a company established in Italy, develops, produces and distributes various kinds of laminates and multilayer film.

16

By letter of March 2007, Ritrama claimed that Folien Fisher’s distribution policy and its refusal to grant patent licences were contrary to competition law.

17

After receiving that letter, Folien Fischer and Fofitec brought an action before the Landgericht Hamburg (Regional Court, Hamburg) (Germany) for a negative declaration stating that (i) Folien Fischer was not obliged to desist from its sales practice in relation to the granting of discounts and the terms of its distribution contracts and (ii) Ritrama had no right either to have that sales practice terminated or to obtain compensation on grounds of that sales practice. Folien Fischer and Fofitec also sought a declaration that Fofitec was under no obligation to grant a licence for the two patents, held by that company, which protect the manufacture of forms and the base materials for their manufacture.

18

After the action for a negative declaration had been brought, Ritrama and Ritrama AG, a subsidiary established in Switzerland, brought an action for performance before the Tribunale di Milano (District Court, Milan) (Italy), arguing that the conduct of Folien Fischer and Fofitec was anti-competitive and seeking an award of damages as well as an order requiring Fofitec to grant licences for the patents in question. At the hearing before the Court of Justice, Ritrama stated that those proceedings had been stayed.

19

The action for a negative declaration brought by Folien Fischer and Fofitec was dismissed as inadmissible by the Landgericht Hamburg. On 14 January 2010, that decision was confirmed on appeal by the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) (Germany).

20

In its judgment, the appeal court declined to recognise that the German courts had jurisdiction, on the ground that the jurisdiction in matters relating to tort or delict provided for in point (3) of Article 5 of Regulation No 44/2001 cannot be applied in the case of an action for a negative declaration, such as that brought by Folien Fischer and Fofitec, since the very purpose of such an action is to establish that no tort or delict has been committed.

21

The Bund