Peter Bosworth and Colin Hurley v Arcadia Petroleum Limited and others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Silva de Lapuerta
• ECLI: ECLI:EU:C:2019:310
• Docket Number: C-603/17
• Date: 11 April 2019
• Procedure Type: Cuestión prejudicial - sobreseimiento

JUDGMENT OF THE COURT (First Chamber)

11 April 2019 (*)

(Reference for a preliminary ruling — Area of freedom, security and justice — Judicial cooperation in civil matters — Lugano II Convention — Jurisdiction and recognition and enforcement of judgments in civil and commercial matters — Title II, Section 5 (Articles 18 to 21) — Jurisdiction over individual contracts of employment)

In Case C‑603/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom, made by decision of 20 October 2017, received at the Court on 20 October 2017, in the proceedings

Peter Bosworth,

Colin Hurley

v

Arcadia Petroleum Limited and Others,

THE COURT (First Chamber),

composed of R. Silva de Lapuerta (Rapporteur), Vice-President of the Court, acting as President of the First Chamber, A. Arabadjiev, E. Regan, C.G. Fernlund and S. Rodin, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 13 September 2018,

after considering the observations submitted on behalf of:

– Mr Bosworth and Mr Hurley, by A. Briggs QC and D. Foxton QC, R. Eschwege, Barrister, and T. Greeno and A. Forster, Solicitors,

– Arcadia Petroleum Limited and Others, by M. Howard QC, F. Pilbrow and N. Venkatesan, Barristers, and S. Trevan, J. Kelly and T. Snelling, Solicitors,

– the European Commission, by M. Heller and M. Wilderspin, acting as Agents,

– the Swiss Government, by M. Schöll, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 24 January 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the provisions of Section 5 of Title II (Articles 18 to 21) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, the conclusion of which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008 (OJ 2009 L 147, p. 1; ‘the Lugano II Convention’).

2 The request has been made in proceedings between Mr Peter Bosworth and Mr Colin Hurley, on the one hand, and Arcadia Petroleum Limited and other companies, on the other, concerning a claim for damages for the loss those companies claim to have suffered as a result of alleged fraud by Mr Bosworth and Mr Hurley.

Legal context

3 Article 5 of the Lugano II Convention provides:

‘A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued:

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

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

– in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;

– in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided.

(c) if (b) does not apply then subparagraph (a) applies;

...

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

...’

4 Under Article 18(1) of that convention:

‘In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5).’

5 Article 20(1) of that convention states:

‘An employer may bring proceedings only in the courts of the State bound by this Convention in which the employee is domiciled.’

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

6 Arcadia London, Arcadia Singapore and Arcadia Switzerland are companies engaged in the business of trading physical crude oil and oil derivatives. They belong to the Arcadia Group, which is 100% owned by Farahead Holdings Ltd.

7 Mr Bosworth and Mr Hurley are British nationals who are domiciled in Switzerland and who, at the material time, were chief executive officer (CEO) and chief financial officer (CFO), respectively, of the Arcadia Group. They were also directors of Arcadia London, Arcadia Singapore and Arcadia Switzerland and were each party to a contract of employment with one of those companies drafted by themselves or at their direction.

8 By an application lodged on 12 February 2015, Arcadia London, Arcadia Singapore, Arcadia Switzerland and Farahead Holdings (together ‘Arcadia’) commenced proceedings in the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom), against a number of parties, including Mr Bosworth and Mr Hurley. Arcadia sought compensation for the damage which the Arcadia Group claimed to have sustained as a result of fraudulent transactions involving the companies in that group.

9 The proceedings brought by Arcadia were based on claims of unlawful means conspiracy, breach of fiduciary duty and breach of express and/or implied contractual duties pursuant to Mr Bosworth’s and Mr Hurley’s contracts of employment.

10 By a document of 9 March 2015, Mr Bosworth and Mr Hurley challenged the jurisdiction of the United Kingdom courts to hear and determine Arcadia’s damages claims against them on the ground that those claims fell within the provisions of Section 5 of Title II of the Lugano II Convention concerning the rules on jurisdiction over individual contracts of employment, and that, under those rules, the claims should be brought before the courts of the State in which Mr Bosworth and Mr Hurley are domiciled, that is to say, the Swiss courts.

11 Following that challenge, Arcadia amended its application. It withdrew its claims for breach of contract and for breach of contract as unlawful means in the context of the tort of conspiracy.

12 By a judgment of 1 April 2015, the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court), declared that it had jurisdiction over the claims in unlawful means conspiracy and breach of fiduciary duty...