Summary of the Judgment

1.

An action brought by way of legal subrogation against an importer who owed customs duties by the guarantor who paid those duties to the customs authorities in performance of a contract of guarantee under which it had undertaken to the customs authorities to guarantee payment of the duties in question by the forwarding agent, which had originally been instructed by the principal debtor to pay the debt, does not amount to the exercise of powers falling outside the scope of the rules applicable to relationships between private individuals, and must therefore be regarded as coming within 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, 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, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic. see paras 19, 21

2.

Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 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, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, must be interpreted as follows: matters relating to a contract do not cover the obligation which a guarantor who paid customs duties under a guarantee obtained by the forwarding agent seeks to enforce in legal proceedings by way of subrogation to the rights of the customs authorities and by way of recourse against the owner of the goods, if the latter, who was not a party to the contract of guarantee, did not authorise the conclusion of that contract. see para. 26, operative part

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

((Brussels Convention – Special jurisdiction – Article 5(1) – Meaning of matters relating to a contract – Contract of guarantee entered into without the knowledge of the principal debtor – Subrogation of the guarantor to the rights of the creditor – Right of recourse of the guarantor against the principal debtor)) In Case C-265/02, REFERENCE to the Court under 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 Corte suprema di cassazione (Italy) for a preliminary ruling in the proceedings pending before that court between Frahuil SA

and

THE COURT (Fifth Chamber),,

after considering the written observations submitted on behalf of:

─

having regard to the report of the Judge-Rapporteur,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1

By order of 11 April 2002, received at the Court on 18 July 2002, the Corte suprema di cassazione (Supreme Court of Cassation) referred to the Court for a preliminary ruling under 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 a question on the interpretation of Article 5(1) 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 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and 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; hereinafter the Brussels Convention).

2

That question was raised in the course of proceedings brought by way of recourse by Assitalia SpA ( Assitalia), a company governed by Italian law, against Frahuil SA ( Frahuil), a company governed by French law, in order to obtain reimbursement of the customs duties which Assitalia had paid as guarantor of the forwarding agent Vegetoil srl ( Vegetoil) in connection with the importation of goods by Frahuil.

Relevant provisions

The Convention

3

The first paragraph of Article 1 of the Convention provides that it shall apply in civil and commercial matters ... It shall not extend, in particular, to revenue, customs or administrative matters.

4

The first paragraph of Article 2 of the Convention states: 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

The first paragraph of Article 5 provides: A person domiciled in a Contracting State may, in another Contracting State, be sued:

1.

in matters relating to a contract, in the courts for the place of performance of the obligation in question; ...

6

The first paragraph of Article 53 of the Convention provides: For the purposes of this Convention, the seat of a company or other legal person or association of natural or legal persons shall be treated as its domicile. ...

National law

7

Concerning the guarantee, Article 1949 of the Italian Civil Code ( the Civil Code), entitled Subrogation of the guarantor to the rights of the creditor, provides in particular: The guarantor who has paid the debt shall be subrogated to all the rights which the creditor had against the debtor.

8

The first paragraph of Article 1950 of the Civil Code, entitled Recourse against the principal debtor, is worded as follows: The guarantor who has paid shall have recourse against the principal debtor, even if the guarantee was obtained without the knowledge of the debtor.

The main proceedings and the question referred

9

Frahuil, established in Marseille (France), imported into Italy goods from non-Member States. It instructed Vegetoil to carry out the customs clearance formalities and claims to have paid to it in advance the amounts of the customs duties payable.

10

Vegetoil did not pay the duties in question, but exercised its right to defer payment against the provision of a guarantee pursuant to Articles 78 and 79 of the testo unico delle disposizioni legislative in materia doganale (Consolidated Customs Law), approved by Decree No 43 of the President of the Republic of 23 January 1973 (GURI ordinary supplement to No 80 of 28 March 1973).

11

The guarantee was provided by means of a contract of guarantee entered into, without the knowledge of Frahuil, between Vegetoil and Assitalia, established in Rome, in which the latter stood surety for Vegetoil as regards the Italian customs authorities.

12

Assitalia paid the customs duties payable in connection with the importation by Frahuil.

13

Assitalia summonsed Frahuil before the Tribunale di Roma (Italy) in order to obtain reimbursement of the sums which it had paid to the customs authorities. That action was based on the subrogation to the rights of the creditor and on the action for recourse against the debtor provided for, in favour of the guarantor, in Articles 1949 and 1950 of the Civil Code.

14

15

16

Frahuil appealed on a point of law to the Corte suprema di cassazione. It argued, essentially, that subrogation of the guarantor to the rights of the creditor and the action for recourse afforded against the principal debtor are derived not from the contract of guarantee but from the law, in particular Articles 1949 and 1950 of the Civil Code. Assitalia contended that the action brought was of a contractual nature since, under the provisions of the Civil Code, it was the natural consequence of the contract of guarantee.

17

Uncertain as to the interpretation of Article 5(1) of the Brussels Convention, the Corte suprema di cassazione decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: Is Article 5(1) of the Brussels Convention of 27 September 1968, 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, by the Convention of 25 October 1982 on the accession of the Hellenic Republic, by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic 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, to be interpreted as subsuming under matters relating to a contract the obligation which a guarantor who paid customs duties under a guarantee obtained by the forwarding agent seeks to enforce in legal proceedings by way of subrogation to the rights of the customs authorities and by way of recourse against the third-party debtor who is the owner of the goods and unconnected with the contract of guarantee?

The question referred

The applicability of the Convention

18

20

[2003] ECR I-4867, paragraph 23).

21

The legal relationship between Frahuil and Assitalia, the two parties governed by private law who are contesting the main proceedings, is a relationship governed by private law. According to the order for reference, the party which brought the action is exercising a legal remedy which is open to it through a legal subrogation provided for in a civil law provision. That action does not amount to the exercise of powers falling outside the scope of the rules applicable to relationships between private individuals, and must therefore be regarded as coming within the concept of civil and commercial matters within the meaning of the first paragraph of Article 1 of the Convention (see, to this effect,

, cited above, paragraph 36).

The concept of matters relating to a contract

v

[2002] ECR I-8111, paragraph 35).

23

Under the system of the Brussels Convention, the general principle is that the courts of the Contracting State in which the defendant is domiciled are to have jurisdiction and it is only by way of derogation from that principle that the Brussels Convention provides for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another Contracting State. Consequently, the rules of jurisdiction which derogate from that general principle cannot give rise to an interpretation going beyond the cases envisaged by the Convention (see in particular

, paragraph 14, and

, paragraph 16, both cited above).

24

, paragraph 15,

, paragraph 17, and

, paragraph 23, cited above).

25

In that regard it is not disputed that in the main proceedings Frahuil is not a party to the contract of guarantee under which Assitalia undertook to guarantee the payment of the customs duties by Vegetoil. However, it appears that Frahuil instructed Vegetoil to carry out the formalities of customs clearance. It is therefore a matter for the referring court to examine the legal relationship between Frahuil and Vegetoil in order to establish whether that relationship permitted Vegetoil, on behalf of Frahuil, to enter into a contract such as the contract of guarantee in question in the main proceedings.

26

It follows from the foregoing considerations that the answer to the question referred by the national court must be that Article 5(1) of the Convention must be interpreted as meaning that matters relating to a contract do not cover the obligation which a guarantor who paid customs duties under a guarantee obtained by the forwarding agent seeks to enforce in legal proceedings by way of subrogation to the rights of the customs authorities and by way of recourse against the owner of the goods, if the latter, who was not a party to the contract of guarantee, did not authorise the conclusion of that contract.

Costs

27

The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Corte suprema di cassazione by order of 11 April 2002, hereby rules:

Delivered in open court in Luxembourg on 5 February 2004.

–

Language of the case: Italian.