«(Brussels Convention – Special jurisdiction – Article 5(1) – Meaning of matters relating to a contract – Contract of guarantee entered into without the knowledge of the principal debtor – Subrogation of the guarantor to the rights of the creditor – Right of recourse of the guarantor against the principal debtor)»

1.. Convention on Jurisdiction and the Enforcement of Judgments – Scope – Civil and commercial matters – Meaning of civil and commercial matters – Action brought by a guarantor against the principal debtor by way of legal subrogation in the context of a contract of guarantee – Included (Brussels Convention of 27 September 1968, Art. 1, first para.)

2.. Convention on Jurisdiction and the Enforcement of Judgments – Special jurisdiction – Jurisdiction in matters relating to a contract – Meaning – Action brought by a guarantor, by way of subrogation, against the principal debtor in the context of a contract of guarantee concluded with a third party – Excluded where the principal debtor has not authorised the conclusion of the contract (Brussels Convention of 27 September 1968, Art. 5(1))

JUDGMENT OF THE COURT (Fifth Chamber) 5 February 2004 (1)

((Brussels Convention – Special jurisdiction – Article 5(1) – Meaning of matters relating to a contract – Contract of guarantee entered into without the knowledge of the principal debtor – Subrogation of the guarantor to the rights of the creditor – Right of recourse of the guarantor against the principal debtor))

In Case C-265/02,

REFERENCE to the Court under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters by the Corte suprema di cassazione (Italy) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 5(1) of the abovementioned Convention of 27 September 1968 (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and ─ amended version ─ p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1),

THE COURT (Fifth Chamber),,

composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans and S. von Bahr, Judges,

Advocate General: P. Léger,

after considering the written observations submitted on behalf of:

having regard to the report of the Judge-Rapporteur,

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

gives the following

The Convention

National law

The applicability of the Convention

The concept of matters relating to a contract

According to settled case-law, the concept of matters relating to a contract is to be interpreted independently, regard being had to the objectives and general scheme of the Convention, in order to ensure that it is applied uniformly in all the Contracting States; that concept cannot therefore be taken to refer to classification under the relevant national law of the legal relationship in question before the national court (see in particular Case C-26/91

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Corte suprema di cassazione by order of 11 April 2002, hereby rules:

Jann

Timmermans

von Bahr

Delivered in open court in Luxembourg on 5 February 2004.

R. Grass

V. Skouris

Registrar

President