In its Judgment of 18 April 2013 in case C-103/11-P Commission v Systran SA, Systran Luxembourg SA (Systran), the CJEU has broadly followed the Opinion of AG Cruz Villalon and confirmed that, when confronted with liability claims, EU Courts must first determine whether there exists a genuine contractual context, linked to the subject-matter of the dispute, between the claimant and the defending EU institution. In that regard, according to the CJEU, if a preliminary analysis of those matters shows that it is necessary to interpret the content of one or more contracts concluded between the parties in question in order to establish whether the applicant’s claims are well founded, EU Courts are required at that point to halt their examination of the dispute and declare that they have no jurisdiction (press release).
As anticipated here, this finding seems to have deep implications in the debate concerning the vis atractiva of contractual relationships when one of the parties subsequently engages in tortious behavior (in the case, for breach of IP rigths) and, consequently, the Systran Judgment deserves some careful thought.
As the CJEU has clearly set out in Systran:
63 [...] when hearing an action for compensation, the Community Courts must, before ruling on the substance of the dispute, as a preliminary issue determine their jurisdiction by carrying out an analysis to establish the character of the liability invoked and thus the very nature of the dispute in question.
64 In doing that, those Courts cannot base their reasoning simply on the rules alleged by the parties.
65 In that regard, [...] the Court of Justice has already held that the mere invocation of legal rules not flowing from a contract relevant in the case, but which are binding on the parties, cannot have the consequence of altering the contractual nature of the dispute and thus removing it from the jurisdiction of the competent court. If it were otherwise, the nature of the dispute and, consequently, the competent court, could be changed at the whim of the rules invoked by the parties, which would go against the rules on the jurisdiction of the various courts ratione materiae (Guigard v Commission, paragraph 43).
66 However, the Community Courts are required to verify whether the action for compensation before them has as its subject-matter a claim for damages based objectively and overall on rights and obligations of a contractual nature or of a non-contractual nature. For those purposes, as the Advocate General has pointed out in points 49 and 50 of his Opinion, those Courts must examine, on an analysis of the various matters in the file, such as, for example, the rule of law allegedly infringed, the nature of the damage claimed, the conduct complained of and the legal relations between the parties in question, whether there exists between them a genuine contractual context, linked to the subject-matter of the dispute, the in-depth examination of which proves to be indispensable for the resolution of the said action.
67 If a preliminary analysis of those matters shows that it is necessary to interpret the content of one or more contracts concluded between the parties in question in order to establish whether the applicant’s claims are well founded, those courts are required at that point to halt their examination of the dispute and declare that they have no jurisdiction to rule thereon in the absence of an arbitration clause in the said contracts. In such circumstances, examination of the action for compensation directed against the Community would imply the assessment of rights and obligations of a contractual nature which, pursuant to Article 240 EC, cannot be removed from the jurisdiction of the national courts (C-103/11-P, paras 63 to 67, emphasis added).
More specifically, when analyzing the application of these principles by the General Court in the appealed decision, the CJEU stressed that
It is true [...] that it is not sufficient to allege simply any contractual relationship with the applicant or obligations of contractual origin not envisaging the conduct in dispute in order to be able to change the nature of the dispute by giving it a contractual basis. However, the fact remains that where, having regard to the content of the action for compensation against the Community, the interpretation of one or more contracts concluded between the parties in question appears to be indispensable in order to establish the legality or otherwise of the conduct by the institutions which is complained of, the dispute falls outside the jurisdiction of the Community Courts (C-103/11-P, para 80, emphasis added).
A summary reading of Systran indicates that, when the parties hold a previous or ongoing contractual relationship (which merits interpretation), claims for damages (due to breach of IPR-rights, or otherwise) should in principle be analysed within the sphere of those contracts and, only if no sufficient connection is found to the prior contractual bound, a 'purely' tortious claim will be allowed. Such a principle, which is developed in view of jurisdictional concerns, may have very significant substantive implications for contract and tort law in the EU (which precise delimitation seems to be permanently under debate)--unless the Systran Judgment is confined to a matter of procedural law (which, in my opinion, would be the wrong thing to do).
The general approach in Systran would imply that EU Courts retain jurisdiction for damages claims only in the absence of any (meaningful, sufficiently close) contractual relationship between the claimant and the defending EU institution (which, for instance, would leave them completely lacking of jurisdiction in the area of damages resulting from public procurement and the execution of the ensuing public contracts).
It would also imply, more generally, that as a matter of EU Law, there is a principle of contractual absorption (vis atractiva contractus) that would extend the sphere of the contract, ie its scope (and, possibly, its effectiveness), to the damages inflicted by one party to the other due to tortious behaviour that may exceed the specific provisions of the contract (ie beyond strict breaches of contractual obligations). As a result of such vis atractiva--and given the different regulation of contractual and non-contractual claims in each of the Member States--different rules can apply to issues such as limitation periods, liquidated damages, penalty clauses, arbitration agreements, etc.
And, in any case, given the difficulty in drawing a clear dividing line between contract and other areas of private law, the issue seems far from being finally sorted out, despite the creation of this type of rules of priority of contract law over non-contractual obligations, such as the one expressly included in the Draft Common Frame of Reference (VI.–1:103):
Should it, however, in fact come to a conflict between the values of contract law and non-contractual liability law in any particular case, whereby contract law denies liability which would subsist according to the provisions on noncontractual liability, then it is for the rules of contract law to assert priority if that is to be claimed in accord with the objective of the contract law rules. That is again the case if an application of the law on non-contractual liability in parallel with the corresponding contract law provision would deprive the latter of its effect. The contract law rule has priority so far as contract law actually claims it, whether expressly or merely by implication from the nature of things. Where contract law makes no such demand for the subsidiarity of non-contractual liability law, sub-paragraph (c) has no application and the principle of free concurrence of actions governs.
Therefore, the recognition (or not) of a general principle of the vis atractiva of contracts as a matter of EU law (in Systran) seems most relevant and deserves some further work in the future--particularly in view of the interrelationship between issues of substance and procedure (jurisdiction), which the CJEU has, as a matter of principle, prioritised in favour of contract law (and which also seems the default preferred option in the DCFR 2008).