The attributive clauses of jurisdiction in European law: status as a trader is not a criterion

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The attributive clauses of jurisdiction in European law: status as a trader is not a criterion

Published on 23 September 2015
European legislation (European regulation (CE) n°44/2001, article 23) recognises the validity of an attributive clause of jurisdiction, only on condition that one of the parties resides in one of the member states and that the designated jurisdiction is that of one of the member states, without the necessity of the parties having the statute of trader. Hypothetically, French jurisdiction should therefore override national law concerning the validity of attributive clauses, which include the statute of trader of all parties, to give precedence to the more flexible European regulations which do not retain this criterion.

It is on this basis that the decision of the Court of appeal of Dijon was rendered on 17 September 2015.

In this case, an act of transfer of shares under French law was drawn up between two French companies, one German company and an individual, non-trader, of German nationality. The parties had included a clause in this convention attributing jurisdiction to the commercial court of Dijon.

Litigation arose within the framework of the implementation of the said contract of transfer. The two French companies asked for the ligation to be brought before the commercial court of Chaumont, under application of French civil law.

In effect, the plaintiffs considered that under article 48 of the code of civil procedure that the clause stipulated in the act of transfer was not valid, due to the fact that one of the parties involved in the litigation could not be considered as a trader.

The co-defendants raised the point of an exception of incompetence putting forward that it applies to a dispute between on the one side companies constituted under French law and on the other side an individual and an entity covered by German law. This clause is applicable with regards to European legislation which does not make the statute of trader a condition of validity.

In the first instance, the commercial court of Chaumont considered that the disputed clause was not valid, since none of the parties involved in the act of transfer had the required statute of trader, under French law.

The German co-defenders lodged an objection to this decision. 

The court of appeal of Dijon overruled the judgement of the commercial court in Chaumont which had departed from the community provisions while upholding its jurisdiction and transferred the case to the commercial court of Dijon.

In effect, the court held that the European text was perfectly applicable to the present case in so far as the international element was a result of the fact that two of the parties involved in the litigation were under German law.

The attributive clause of jurisdiction stipulated in the contract under French law was thus applicable under French jurisdiction even though such a clause is declared unwritten under national law.

In fact, this was the solution retained.

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