Opinion of Advocate General Szpunar delivered on 23 April 2020.

• Jurisdiction: European Union
• Date: 23 April 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 23 April 2020 (1)

Case C‑73/19

Belgische Staat, represented by the Minister van Werk, Economie en Consumenten, responsible for Buitenlandse handel,

Belgische Staat, represented by the Directeur-Generaal van de Algemene Directie Economische Inspectie,

Directeur-Generaal van de Algemene Directie Economische Inspectie

v

Movic BV,

Events Belgium BV,

Leisure Tickets & Activities International BV

(Request for a preliminary ruling from the hof van beroep te Antwerpen (Court of Appeal of Antwerp, Belgium))

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Concept of ‘civil and commercial matters’ — Action for an injunction brought by a public authority to protect the interests of consumers)

I. Introduction

1. In its judgment of 1 October 2002, Henkel, (2) the Court held that the concept of ‘civil and commercial matters’, which defines the scope of the majority of EU instruments of private international law, encompassed proceedings in which an action for an injunction preventing the use of unfair terms was brought by a consumer protection association. By this reference for a preliminary ruling, the referring court asks the Court to determine whether that concept also encompasses proceedings in which the public authorities of a Member State bring an action in relation to unfair market and/or commercial practices.

II. Legal background

A. EU law

2. Article 1(1) of Regulation (EU) No 1215/2012 (3) provides that ‘this Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’.

B. Belgian law

1. The Law of 30 July 2013

3. Article 5(1) of the loi du 30 juillet 2013 relative à la revente de titres d’accès à des événements (Law of 30 July 2013 on the resale of event admission tickets) (Moniteur Belge of 6 September 2013, p. 63069; ‘the Law of 30 July 2013’) prohibits the regular resale of event admission tickets, the regular display of such tickets with a view to resale, and the provision of means which will be used for the purposes of the regular resale of such tickets. Furthermore, Article 5(2) of that law prohibits the occasional sale of admission tickets at a price greater than their fixed price.

4. Under Article 14 of that law, it is for the President of the Commercial Court to make findings that conduct has taken place which constitutes an infringement of Article 5 and to order its cessation. Article 14 of the law also provides that actions for cessation orders are brought at the request of the Minister, of the Director-General of the Directorate-General for Inspection and Mediation of the Federal Public Service for the Economy, SMEs (small and medium-sized enterprises), Middle classes and Energy, or of the interested parties.

2. The Code of Economic Law

5. Book VI of the Code of Economic Law of 28 February 2013 (in the version applicable at the material time; ‘the CEL’) contains a Title 4 which in turn contains a Chapter 1 concerning ‘Unfair business-to-consumer commercial practices’. Articles VI.92 to VI.100 of that chapter implement Directive 2005/29/EC. (4) In that context, certain unfair commercial practices are defined, in particular, by Articles VI.100, VI.97, VI.99 and VI.93 of the CEL.

6. Under Article XVII.1 of the CEL, it is generally (there are exceptions for certain specific actions) for the President of the Commercial Court to make findings that conduct has taken place which constitutes an infringement of the CEL, even where such conduct is punishable as a matter of criminal law, and to order its cessation. Article XVII.7 of the CEL provides for actions based on Article XVII.1 of that code to be brought at the request, inter alia, of the interested parties, of the Minister or the Director-General of the General-Directorate for Inspection and Mediation of the Federal Public Service for the Economy, SMEs, Middle classes and Energy, or of a consumer protection association acting in defence of the collective interests of consumers as defined by statute.

III. The main proceedings, the question referred for a preliminary ruling and procedure before the Court

7. In 2016 the Belgian authorities brought two cessation actions, by a procedure enabling interim orders to be made, against the defendants Movic BV, Events Belgium BV and Leisure Tickets & Activities International BV, all of which are companies incorporated under Netherlands law.

8. The relief sought in those actions was,

– first, a declaration that the defendants were offering event admission tickets for resale in Belgium, via websites managed by them, at a price greater than that stated by the original seller, having erased the original price and the name of the original seller, and that in doing so they were infringing Articles 4§1, 5§1 and 5§2 of the Law of 30 July 2013 and Articles VI.100, VI.97, VI.99 and VI.93 of the CEL, read, where applicable, in conjunction with Articles 193b to l93g of Book 6 of the Nederlands Burgerlijk Wetboek (Netherlands Civil Code);

– secondly, a cessation order in respect of that infringement;

– thirdly, an order for the decision of the court to be publicised at the expense of the Netherlands companies;

– fourthly, the imposition of a penalty payment of EUR 10 000 for every infringement which might be found to have taken place after service of the judgment;

– fifthly (and finally), a ruling permitting the fact of such infringement to be certified simply by means of a report drawn up by an official, on oath, of the Algemene Directie Economische Inspectie (Directorate-General for Economic Inspection), in accordance with Article XV.2 et seq. of the CEL.

9. The defendants raised an objection of lack of international jurisdiction of the Belgian courts, maintaining that the Belgian authorities had acted in the exercise of State authority, so that the actions did not fall within the scope of Regulation No 1215/2012. The objection was upheld at first instance.

10. The applicants brought an appeal before the hof van beroep te Antwerpen (Court of Appeal of Antwerp, Belgium). In those circumstances, that court decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Is an action concerning a claim aimed at determining and stopping unlawful market practices and/or commercial practices towards consumers, instituted by the Belgian Government in respect of Dutch companies which from the Netherlands, via websites, focus on a mainly Belgian clientele for the resale of tickets for events taking place in Belgium, pursuant to Article 14 of [the Law of 30 July 2013] and pursuant to Article XVII.7 [of the CEL], a civil or commercial matter within the meaning of Article 1(1) of [Regulation 1215/2012], and can a judicial decision in such a case, for that reason, fall within the scope of that regulation?’

11. Written observations were lodged by the applicants, the Belgian Government and the European Commission. Those same interested parties appeared at the hearing of 29 January 2020.

IV. Analysis

12. By the question it has referred for a preliminary ruling, the national court is seeking to establish whether the expression ‘civil and commercial matters’ in Article 1(1) of Regulation No 1215/2012, encompasses proceedings between the authorities of a Member State and private law entities established in another Member State, in which those authorities seek, first, findings of infringement in respect of conduct constituting, inter alia, unfair commercial practices, secondly, an order for the cessation of such infringement, thirdly, an order for publicity measures to be taken at the expense of the defendants; fourthly, the imposition of a penalty payment in a fixed sum, due in respect of each and every infringement which may be found to have taken place after service of the judgment, and fifthly, permission for the fact of such infringement to be certified simply by means of a report drawn up by a sworn official of one of the authorities in question.

13. Although it seems that the actions relate either to unfair market practices or to unfair commercial practices, the referring court has not explained how the practices in question are interrelated. At the hearing, the Belgian Government and one of the defendants observed that the Law of 30 July 2013 constituted lex specialis with respect to the CEL. I infer from that that, in the absence of such lex specialis, any infringement would constitute an unfair commercial practice. Furthermore, it seems that the two legislative instruments have the same objective (namely to protect the interests of consumers), and that they follow similar logic.

14. Moreover, although the wording of the question referred might suggest that the referring court is concerned only about the claims which relate to determining that infringement has taken place and stopping such infringement, that court must, if it is to be able to declare itself to have jurisdiction to hear the main proceedings under one of the grounds of jurisdiction provided for by Regulation No 1215/2012, (5) satisfy itself that none of the Belgian authorities’ heads of claim takes those proceedings outside the material scope of that regulation, either in whole or in part.

15. Furthermore, it is apparent from the wording of the question referred that the national court also wishes to establish whether the substantive determination made in the main proceedings will fall within the material scope of Regulation No 1215/2012. While it may be doubted whether it is necessary to answer that question in order to enable the national court to determine the...