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Jurisdiction Under Brussels I Regulation 1 Cases

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JURISDICTION UNDER BRUSSELS I REGULATION (PART 1) Article 1 'Civil and commercial matters' Verein fur Konsumenteninformation v Henkel [2002]
C, Austrian consumer protection body (VFK), brought proceedings under Brussels Convention against D, a German national; C believed there were unfair contract terms in contracts concluded between D and Austrian nationals. Was argued that Brussels Convention did not apply, as the VFK was exercising a public law power - and Article 1 of BC states that Convention only applies to 'civil and commercial matters'. Held:

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Actions between a public body and a private person only fall outside of BC insofar as public body is exercising public law functions.
? However this irrelevant anyway as VFK is a private body. In addition, subject matter of action is private.
? Contracts being challenged are creature of private law.
? Thus the action simply seeks to make relationships governed by private law subject to review under Convention. Therefore subject matter of proceedings is civil, and Brussels Convention applies.

Preservatrice Fonciere TIARD v Netherlands [2003]
Netherlands sought to enforce a guarantee which C, a private company, had made in favour of the Netherlands. C claimed Netherlands did not have jurisdiction, as the subject matter of proceedings was not 'civil or commercial' as per Article 1 of Brussels Convention. Held:

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A claim by State for breach of a private law obligation falls under Convention insofar as it does not entail an exercise of powers by State going beyond that existing under rules governing private law relations. Hence fact that guarantee was made in favour of State does not matter, provided it was freely given under relevant rules applicable to private contracts.

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