INspiRE Jean-Monnet-Centre of Excellence - Rechtsprechungskomplexe: Brenneke-Rechtsprechung
In the Brenneke case the French Court of Cassation made a decision concerning the application of Article 5 no. 1 lit. a) and lit. b) of the EC Regulation no. 44/2001 of 22 December 2000 (Brussels I Regulation). The German companies Brenneke concluded an agreement with a French company for the distribution of goods in which exclusive distribution in France was conferred to the French company. The French company alleged that the other party had committed a breach of contract and issued a claim for the annulment of the contract as well as for compensation before a French court. On the ground of Article 5 no. 1 lit. a) of the Brussels I Regulation, the defendants argued that the French courts lacked jurisdiction. The French Court of Appeal dismissed their appeal. The Court of Cassation also dismissed the final appeal on the ground of the ECJ’s case law.
The issue at stake was whether Article 5 no. 1 lit. b) of the above mentioned regulation applies to exclusive distribution agreements. Article 5 no. 1 lit. b), second indent, states that unless otherwise agreed, the place of performance of the obligation in question shall be - in the case of the provision of services - the place in a Member State where, under the contract, the services were provided or should have been provided. Both the court for the place of performance and the court of the Member State in which the defendant is domiciled have jurisdiction. Does a distribution agreement fall under the notion of “provision of services”? If not, the French courts would have lacked jurisdiction and Article 5 no. 1 lit. a) of the Brussels I Regulation would have applied: according to the ECJ case law (judgment of 6 October 1976, C-12/76 – Tessili) the place of performance of the obligation on which the claim is based should then have been determined in accordance with the law which governs the obligation in question according to the rules of conflict of laws of the court before which the matter is brought.
The ECJ had decided in its Corman-Collins judgment of 19 December 2013 (C-9/12) that Article 5 no. 1 lit. b) of the Brussels I Regulation must be interpreted as meaning that the rule of jurisdiction laid down in the second indent of that provision for disputes relating to contracts for the supply of services is applicable in the case of a legal action by which a plaintiff established in one Member State claims rights arising from an exclusive distribution agreement against a defendant established in another Member State, which requires the contract binding the parties to contain specific terms concerning the distribution by the distributor of goods sold by the grantor. It is for the national court to ascertain whether that is the case in the proceedings before it.
Up to this point, French case law had not followed this approach and used to rule that an exclusive distribution agreement did not qualify as a contract for the supply of services (Cass. Civ. 1, 5 March 2008, no. 06-21.949, Bull. civ. I, no61; D. 2008. 1729, comment Delpech and comment Kenfack; JCP E 2008. 1632; Procédures 2008, no143, comment Nourissat). But less than one year after the ECJ rendered this judgment, the French Court of cassation took into account the solution provided by the European court. It reversed its case law and dismissed the final appeal, but modified the reasons contained in the appellate judgment in order to make a direct and immediate application of the ECJ case law. This decision is one of the numerous examples in which the French Court of Cassation quotes the ECJ judgments and precisely applies their solutions to cross border cases.
Cour de Cassation, Civ. 1, Judgment of 19 Nov 2014, no. 13-13.405, FR:CCASS:2014:C101357 – Brenneke = Bulletin de la Cour de cassation (Bull. civ.) I, no. 196; LPA 2015, n° 27, p. 7, comment J.-G. Mahinga; D. 2015. 51, comment G. Lardeux; JCP 2014, n° 1243, comment P. Berlioz; RLDC 2015/122, n° 5682, comment M. Desolneux; JCP 2015, n° 11, comment D. Sindres; JCP 2015, n° 236, comment M. Menjucq; RLDA avr. 2015. 46, comment C. Reydellet; JCP 2015, n° 424, comment E. Jeuland; D. 2015. Pan. 943, comment D. Ferrier; D. 2015. Pan. 1056, comment F. Jault-Seseke; Europe 2015. Chron. 2, comment S. Barbou des Places and A.-S. Choné-Grimaldi
Court of Cassation – First Civil Chamber (Cour de cassation) Public hearing, 19 November 2014, No. of final appeal: 13-13405 – Brenneke – Cour de cassation, chambre civile 1 Audience publique du mercredi 19 novembre 2014 N° de pourvoi: 13-13405