CASE LAW: Case C-68/93, Fiona Shevill and others v. Presse Alliance S.A., 1995 E.C.R. 1-415. Brussels Convention Article 5(3), Defamation by a newspaper; Jurisdiction; Place where the harmful event occurred.
Marta Pertegás Sender. Assistant, Center for International and Foreign Law, Katholieke Universiteit Leuven.
The case law section has been prepared in cooperation with the Institute for European Law, Katholieke Universiteit Leuven.
Preliminary Remarks: the Brussels Convention as Framework
A necessary component of the internal market within the European Union is adequate legal protection, when necessary by judicial means, for the citizens. This is the underlying justification of the Convention of September 27, 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, (hereinafter referred to as the Brussels Convention). The Brussels Convention aims at providing the legal systems of the Contracting States with a set of uniform rules to determine the international jurisdiction of their courts. All civil and commercial matters are covered, apart from certain exceptions which are exhaustively listed in Article 1(2) of the Convention. Furthermore, the Convention seeks to facilitate as far as possible the free application of judgments adopted under its heads of jurisdiction: firstly, by reducing the number of grounds that can prevent the recognition and enforcement of those judgments and, secondly, by standardizing the enforcement procedure in all the Contracting States.
The rules of jurisdiction laid down by the Brussels Convention are founded on the following principles:
1) the rules of jurisdiction apply not only to nationals of the Contracting States but also to any person, regardless of his/her nationality, who is domiciled in one of the Contracting States. Thus the Brussels Convention embodies the principle of equal treatment, but goes further than Article 6 of the EC Treaty (which lays down the principle of non-discrimination between nationals of Member States).
2) a defendant domiciled in a Contracting State is in general to be sued in the Courts of that State (Article 2), according to the maxim “actor sequitur forum rei.” The principle that the rules of procedure should lean in favor of the defendant is common to the Contracting States.
3) a person domiciled in a Contracting State may in certain circumstances be sued in courts other than those of the defendant’s domicile (Article 3). These circumstances are expressly provided for in Arts. 5 to 18 of the Convention. Article 5(3) provides an example: in matters relating to tort, delict or quasi-delict, it declares that jurisdiction may be established as regarding the courts of “the place where the harmful event occurred” as an alternative to Article 2.
4) a person domiciled outside the Community is subject to all applicable national rules of jurisdiction (Article 4).
The practical importance of the Brussels Convention has been increasingly recognized over its more than 25 years’ existence. This has been reflected in the increasing number of the preliminary rulings delivered by the Court of Justice. One of the issues that has been repeatedly dealt with by the Court is the interpretation of the special heads of jurisdiction contained in Article 5 of the Brussels Convention. The present case is an example of this.