ÖFAB, Östergötlands Fastigheter AB v Frank Koot and Evergreen Investments BV.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: von Danwitz
• ECLI: ECLI:EU:C:2013:490
• Date: 18 July 2013
• Docket Number: C‑147/12
• Procedure Type: Cuestión prejudicial - inadmisible

JUDGMENT OF THE COURT (Fifth Chamber)

18 July 2013 ( *1 )

‛Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Court with jurisdiction — Special jurisdiction in ‘matters relating to contract’ and ‘matters relating to tort, delict and quasi-delict’’

In Case C-147/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Hovrätten för Nedre Norrland (Sweden), made by decision of 23 March 2012, received at the Court on 26 March 2012, in the proceedings

ÖFAB, Östergötlands Fastigheter AB

v

Frank Koot,

Evergreen Investments BV,

THE COURT (Fifth Chamber),

composed of T. von Danwitz (Rapporteur), President of the Chamber, A. Rosas, E. Juhász, D. Šváby and C. Vajda, Judges,

Advocate General: M. Wathelet,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 17 April 2013,

after considering the observations submitted on behalf of:

— ÖFAB, Östergötlands Fastigheter AB, by M. André,

— Mr Koot and Evergreen Investments BV, by K. Crafoord, B. Rundblom Andersson and J. Conradsson, advokater,

— the Swedish Government, by A. Falk and K. Ahlstrand-Oxhamre, acting as Agents,

— the Greek Government, by S. Chala, acting as Agent,

— the United Kingdom Government, by J. Beeko, acting as Agent,

— the European Commission, by A.-M. Rouchaud-Joët and C. Tufvesson, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Council Regulation (EC) No 44/2001 of 22 December 2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

2 The request was made in proceedings between ÖFAB, Östergötlands Fastigheter AB (‘ÖFAB’), established in Sweden, and Mr Koot and Evergreen Investments BV (‘Evergreen’), established in the Netherlands, concerning the refusal by the latter to meet the debts of Copperhill Mountain Lodge AB (‘Copperhill’), a limited company established in Sweden.

Legal context

European Union law

3 Regulation No 44/2001 contains the rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

4 Recitals 8, 11 and 12 in the preamble to that regulation state: ‘(8) There must be a link between proceedings to which this Regulation applies and the territory of the Member States bound by this Regulation. Accordingly common rules on jurisdiction should, in principle, apply when the defendant is domiciled in one of those Member States. … (11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction. (12) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.’

5 According to Article 1(2)(b) of that regulation it does not to apply to ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’.

6 Article 2(1) of Regulation No 44/2001 provides: ‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

7 Article 5(1) and (3) of Regulation No 44/2001 provide that a person domiciled in a Member State may be sued in another Member State: (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 Member State 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 Member State where, under the contract, the services were provided or should have been provided; (c) if subparagraph (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’.

Swedish law

8 In Chapter 25 of the Law on limited liability companies (Aktiebolagslag, SFS 2005, No 551), Article 18 thereof provides that the members of the board of directors may be liable for the debts of the company where they fail to complete certain formalities to monitor the company’s financial situation which no longer has sufficient funds. According to that article: ‘If the board has failed, 1. in accordance with paragraph 13, to draw up and submit to the company’s auditor for scrutiny a pre-liquidation balance sheet in accordance with paragraph 14, 2. in accordance with paragraph 15, to convene a first general meeting, or 3. in accordance with paragraph 17, to apply to the District Court for an order that the company be put in liquidation, the members of the board are jointly and severally liable for the debts of the company arising during the period of any such failure. Any person who, with knowledge of the board’s failure, acts on behalf of the company shall be jointly and severally liable with the members of the board for the obligations which thereby arise for the company. The liability under points 1 and 2 does not apply to any person who shows that he or she has not been negligent. …’

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

9 Mr Koot, who resides in the Netherlands, was a member of the board of directors of Copperhill from 9 September 2007 until 5 September 2009 inclusive, the date on which he became a deputy director, which he remained until 22 January 2010.

10 Evergreen held 40% of Copperhill’s shares prior to acquiring a further 50% of the shares in that company on 11 September 2007.

11 Between 10 October 2007 and 2 December 2009 Copperhill’s seat was situated in the municipality of Åre (Sweden), which falls within the jurisdiction of Östersunds tingsrätt (District Court, Östersund), where it carried on business during that period and built a hotel.

12 For the construction of that hotel, Copperhill ordered excavation works and, inter alia, tiling in the bathrooms from two local companies, Toréns Entreprenad i Östersund AB (‘Toréns’) and Kakelmässan Norr Handelsbolag (‘Kakelmässan’).

13 On 23 March 2009, since Copperhill had suspended payments on account of financial difficulties, the Östersunds tingsrätt made a company reconstruction order (‘företagsrekonstruktion’). Under those measures, Toréns and Kakelmässan were paid only part of their claims against Copperhill. The outstanding balance of the claims was acquired by Invest i Årefjällcn i Stockholm AB (‘Invest’).

14 On 10 August 2010, Invest brought two actions against Mr Koot and Evergreen before the Östersunds tingsrätt. In support of its action against Mr Koot, Invest argued that he was required to compensate it pursuant to Article 18 of Chapter 25 of the Law on limited liability companies. The action against Evergreen was based on a ‘derogation from the principle of limited liability’ and the fact that Evergreen had ‘undertaken’ to pay Toréns and Kakelmässan or to provide Copperhill with the funds necessary to do so.

15 As regards the jurisdiction of the Östersunds tingsrätt to hear the dispute at issue, Invest claimed that the harmful event had occurred in Åre and that the damage was also sustained there. Mr Koot and Evergreen contended that, since they were both domiciled in the Netherlands, that court did not have jurisdiction to hear those disputes.

16 On 26 April 2011, the Östersunds tingsrätt decided to dismiss Invest’s actions on the ground that it did not have jurisdiction to hear the disputes concerned. According to that court, those disputes are not covered either by matters relating to contract nor to matters relating to tort, delict or quasi-delict within the meaning of Article 5(1) and (3) of Regulation No 44/2001. Therefore, in accordance with the general rule laid down in Article 2(1) thereof, those disputes should be brought before the courts of the Member State in which Mr Koot and Evergreen are domiciled.

17 Invest appealed against those decisions before the Hovrătten för Nedre Norrland requesting that that court make a request for a preliminary ruling to the Court of Justice. It then transferred its claims to ÖFAB.

18 The Hovrătten för Nedre Norrland takes the view that, in order to determine the jurisdiction of the Swedish courts to hear the dispute in the main proceedings, it is necessary to interpret Article 5(1) and (3) of Regulation No 44/2001.

19 In that connection, the referring...