Case C-18/02
Danmarks Rederiforening, acting on behalf of DFDS Torline A/S
v
LO Landsorganisationen i Sverige, acting on behalf of SEKO Sjöfolk Facket för Service och Kommunikation
(Reference for a preliminary ruling from the Arbejdsret)

«(Brussels Convention – Article 5(3) – Jurisdiction in matters relating to tort, delict or quasi-delict – Place where the harmful event occurred – Measure taken by a trade union in a Contracting State against the owner of a ship registered in another Contracting State)»

Opinion of Advocate General Jacobs delivered on 18 September 2003
Judgment of the Court (Sixth Chamber), 5 February 2004

Summary of the Judgment

1..

Convention on Jurisdiction and the Enforcement of Judgments – Protocol on the Interpretation by the Court of Justice of the Convention – National courts which may request the Court to give a preliminary ruling – Arbejdsret, court of first and last instance under Danish law with jurisdiction over disputes relating to the legality of certain industrial action – Included


(Protocol of 3 June 1971, Art. 2)

2..

Convention on Jurisdiction and the Enforcement of Judgments – Special jurisdiction – Jurisdiction in matters relating to tort, delict or quasi-delict – Meaning – Case concerning the legality of industrial action which comes within the exclusive jurisdiction of a court other than the court which has jurisdiction to hear any associated claims for compensation – Included


(Brussels Convention of 27 September 1968, Art. 5(3))

3..

Convention on Jurisdiction and the Enforcement of Judgments – Special jurisdiction – Jurisdiction in matters relating to tort, delict or quasi-delict – Place where the harmful event occurred – Damage caused by industrial action initiated by a union in a Contracting State which had admitted a ship registered in another Contracting State into its waters – Damage deemed to have occurred in flag State – Account taken of the nationality of the ship – Limits


(Brussels Convention of 27 September 1968, Art. 5(3))

1.

The Arbejdsret, a Danish court which has exclusive jurisdiction as a court of first and last instance in respect of certain disputes in the sphere of employment law, in particular those relating to the legality of industrial action seeking a collective agreement, may refer a question to the Court of Justice for a preliminary ruling under the second indent of Article 2(1) 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 Enforcements of Judgments in Civil and Commercial Matters. Although that court is not mentioned in Article 2(1) and does not sit in an appellate capacity, as required in Article 2(2), which lists the courts of the Contracting States which may request the Court of Justice to give preliminary rulings on questions of interpretation of the Brussels Convention, a ruling declaring that that court has no jurisdiction to refer questions to the Court of Justice for a preliminary ruling would have the unacceptable result that in Denmark questions concerning the interpretation of the Brussels Convention, arising in certain actions relating to employment law, could never be the subject of a reference for a preliminary ruling. see paras 14-18

2.

Article 5(3) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that a case concerning the legality of industrial action, in respect of which exclusive jurisdiction belongs, in accordance with the law of the Contracting State concerned, to a court other than the court which has jurisdiction to try the claims for compensation for the damage caused by that industrial action, falls within the definition of tort, delict or quasi-delict. For Article 5(3) of the Brussels Convention to apply to such a situation, it is sufficient that the industrial action concerned is a necessary precondition of sympathy action which may result in harm. It is not essential that the harm incurred be a certain or probable consequence of the industrial action in itself. Lastly, the application of that provision is not affected by the fact that the implementation of industrial action was suspended by the party giving notice of the action pending a ruling on its legality. see paras 28-29, 34, 38, operative part 1

3.

Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the damage resulting from industrial action taken by a trade union in a Contracting State to which a ship registered in another Contracting State sails must not necessarily be regarded as having occurred in the flag State with the result that the shipowner can bring an action for damages against that trade union in the flag State. In that connection, the State in which the ship is registered must be regarded as only one factor, among others, assisting in the identification of the place where the harmful event took place. However, the flag State must necessarily be regarded as the place where the harmful event caused damage if the damage concerned arose aboard the ship in question. see paras 44-45, operative part 2

JUDGMENT OF THE COURT (Sixth Chamber)
5 February 2004(1)

((Brussels Convention – Article 5(3) – Jurisdiction in matters relating to tort, delict or quasi-delict – Place where the harmful event occurred – Measure taken by a trade union in a Contracting State against the owner of a ship registered in another Contracting State))

In Case C-18/02,

REFERENCE to the Court under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the Arbejdsret (Denmark) for a preliminary ruling in the proceedings pending before that court between

Danmarks Rederiforening,acting on behalf ofDFDS Torline A/S,

and

LO Landsorganisationen i Sverige, acting on behalf ofSEKO Sjöfolk Facket för Service och Kommunikation,

on the interpretation of Article 5(3) of the abovementioned Convention of 27September 1968 (OJ 1978 L 304, p. 36), as amended by the Convention of 9October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and ─ amended version ─ p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1),

THE COURT (Sixth Chamber),,

composed of: V.Skouris, acting on behalf of the President of the Sixth Chamber, J.N.Cunha Rodrigues (Rapporteur), J.-P.Puissochet, R.Schintgen and F.Macken, Judges,

Advocate General: F.G.Jacobs,
Registrar: H.von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

─

Danmarks Rederiforening, acting on behalf of DFDS Torline A/S, by P.Voss, advokat,

─

LO Landsorganisationen i Sverige, acting on behalf of SEKO Sjöfolk Facket för Service och Kommunikation, by S. Gärde, advokat,

─

the Danish Government, by J. Molde and J. Bering Liisberg, acting as Agents,

─

the Swedish Government, by A. Kruse, acting as Agent,

─

the United Kingdom Government, by J.E. Collins, acting as Agent, and K.Beal, Barrister,

─

the Commission of the European Communities, by N. Rasmussen, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Danmarks Rederiforening, acting on behalf of DFDS Torline A/S, represented by P. Voss, LO Landsorganisationen i Sverige, acting on behalf of SEKO Sjöfolk Facket för Service och Kommunikation, represented by S. Gärde and H. Nielsen, advokat, the Danish Government, represented by J. Molde, the Swedish Government, represented by A. Kruse, and the Commission, represented by N. Rasmussen and A.-M. Rouchaud, acting as Agent at the hearing on 20 May 2003,

after hearing the Opinion of the Advocate General at the sitting on 18 September 2003,

gives the following

Judgment

1

By order of 25 January 2002, received at the Court on 29 January 2002, the Arbejdsret (Labour Court, Denmark) referred to the Court for a preliminary ruling, in accordance with 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 (hereinafter the Protocol), two questions on the interpretation of Article 5(3) of that Convention (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and ─ amended version ─ p. 77), by the Convention of 25October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p.1), by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention οf 29 November 1996 on the Αccession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1) ( the Brussels Convention).

2

Those questions arose in the course of litigation between Danmarks Rederiforening (the Danish Association of Shipping Companies), acting on behalf of DFDS Torline A/S (hereinafter DFDS), a shipowner, and LO Landsorganisationen i Sverige (the Swedish Congress of Trade Unions, LO), acting on behalf of SEKO, Sjöfolk Facket för Service och Kommunikation ( SEKO), a trade union, concerning the legality of industrial action, in respect of which notice was served on DFDS by SEKO.

Legal background

3

Article 2 of the Protocol provides: The following courts may request the Court of Justice to give preliminary rulings on questions of interpretation:(1) ...

─

in Denmark: højesteret [Supreme Court]in Denmark: højesteret [Supreme Court]

...

(2)

the courts of the Contracting States when they are sitting in an appellate capacity ...

4

The first paragraph of Article 2 of the Brussels Convention provides: Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.

5

Under Article 5(3) of the Brussels Convention: A person domiciled in a Contracting State may, in another Contracting State, be sued:...

(3)

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

Dispute in the main proceedings and the questions referred for a preliminary ruling

6

The dispute in the main proceedings concerns the legality of a notice of industrial action given by SEKO against DFDS, with the object of securing a collective agreement for Polish crew of the cargo shipTor Caledoniaowned by DFDS, serving the route between Göteberg (Sweden) and Harwich (United Kingdom).

7

TheTor Caledoniais registered in the Danish international ship register and is subject to Danish law. At the time of the facts in the main proceedings, the Polish crew were employed on the basis of individual contracts, in accordance with a framework agreement between a number of Danish unions on the one hand, and three Danish associations of shipping companies on the other. Those contracts were governed by Danish law.

8

After DFDS rejected a request by SEKO on behalf of the Polish crew for a collective agreement, on 21 March 2001, SEKO served a notice of industrial action by fax, with effect from 28 March 2001, instructing its Swedish members not to accept employment on theTor Caledonia. The fax also stated that SEKO was calling for sympathy action. Following that request, the Svenska Transportarbetareförbundet (Swedish Transport Workers Union, STAF) gave notice, on 3 April 2001, of sympathy action with effect from 17 April 2001, refusing to engage in any work whatsoever relating to theTor Caledonia, which would prevent the ship from being loaded or unloaded in Swedish ports.

9

On 4 April 2001, DFDS brought an action against SEKO and STAF, seeking an order that the two unions acknowledge that the principal and sympathy actions were unlawful and that they withdraw the notices of industrial action.

10

On 11 April 2001, the day of the first hearing before the Arbejdsret, SEKO decided to suspend the industrial action pending the court's final decision, while the STAF's notice of industrial action was withdrawn on 18 April 2001.

11

However, on 16 April 2001, the day before the first day of sympathy action called by STAF, DFDS decided to withdraw theTor Caledoniafrom the Göteborg-Harwich route, which was served from 30 May by another ship leased for that purpose.

12

DFDS brought an action for damages against SEKO before the Sø- og Handelsret (Denmark), claiming that the defendant was liable in tort for giving notice of unlawful industrial action and inciting another Swedish union to give notice of sympathy action, which was also unlawful. The damages sought are for the loss allegedly suffered by DFDS as a result of immobilising theTor Caledoniaand leasing a replacement ship. The court decided to stay its decision on the action for damages pending the decision of the Arbejdsret.

13

Taking the view that, in order to decide the question raised by SEKO concerning its jurisdiction and the lawfulness of the industrial action in question, an interpretation of Article 5(3) of the Brussels Convention was necessary, the Arbejdsret decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling: