Language of document : ECLI:EU:C:2019:644

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 29 July 2019 (1)

Case C421/18

Ordre des avocats du barreau de Dinant

v

JN

(Request for a preliminary ruling from the tribunal de première instance de Namur (Belgium))

(Reference for a preliminary ruling — Area of freedom, security and justice — Judicial cooperation in civil matters — Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Regulation (EU) No 1215/2012 — Article 1(1) — Concept of ‘civil and commercial matters’ — Article 7(1) — Special jurisdiction in matters relating to a contract — Concept of ‘matters relating to a contract’ — Claim for payment of annual fees payable by a lawyer to a bar association — Legal obligation freely consented to)






I.      Introduction

1.        The present request for a preliminary ruling, made by the tribunal de première instance de Namur (Court of First Instance, Namur, Belgium), concerns the interpretation of Article 7(1) of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels Ia Regulation’). (2)

2.        The request has been made in the course of proceedings between the Ordre des avocats du barreau de Dinant (Dinant Bar Association, Belgium) and Mr JN, concerning the non-payment by Mr JN of annual professional fees payable to the association. The annual fees are payable by virtue of Mr JN’s registration with the Dinant Bar Association, which is required by the code judiciaire (Belgian Judicial Code) in order to practise as a lawyer in Belgium.

3.        Mr JN is domiciled in France and has challenged the international jurisdiction of the referring court to hear the case.

4.        Against that background, the referring court wishes to know whether an action brought by a bar association, seeking an order requiring one of its members to pay the annual professional fees owed to it, is a matter ‘relating to a contract’ within the meaning of Article 7(1) of the Brussels Ia Regulation.

5.        At the conclusion of my analysis, I will propose that the Court answer that question by ruling that an action concerning an obligation to pay annual fees made up essentially of insurance premiums and arising from a decision of a bar association — which it is for the referring court to verify — must, in circumstances where national law requires lawyers to register with that association, be regarded as coming within the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels Ia Regulation.

II.    Legal background

A.      The Brussels Ia Regulation

6.        Recital 16 of the Brussels Ia Regulation states:

‘In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. …’

7.        Article 1(1) of the Brussels Ia Regulation provides:

‘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).’

8.        Section 2 of that regulation, headed ‘Special jurisdiction’, provides, in Article 7(1):

‘A person domiciled in a Member State may be sued in another Member State:

(1)      (a)      in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b)      for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

–        in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

–        in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

(c)      if point (b) does not apply then point (a) applies;’

B.      The Belgian Judicial Code

9.        The first paragraph of Article 428 of the Belgian Judicial Code provides:

‘No one may bear the title of lawyer or practise as a lawyer if he is not a Belgian national or a national of a Member State of the European Union, or if he does not hold a degree of doctor or licentiate of law, or if he has not taken the oath referred to in Article 429, and is not registered as a member of the Bar Association or as a trainee lawyer’.

10.      Article 443 states that the Council of the Bar Association can oblige the lawyers registered with the Bar Association, the lawyers practising under a professional title conferred by another Member State of the European Union, the trainee lawyers and the honorary lawyers to pay the contributions it determines.

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

11.      On an unspecified date, Mr JN was admitted to the Dinant Bar Association.

12.      He states that he took up residence in France during the 1990s, while remaining registered with the Dinant Bar Association, to which he paid annual fees until 2012.

13.      By letter of 29 May 2015, the President of the Dinant Bar Association requested payment from Mr JN of the fees due for the years 2013, 2014 and 2015. In this regard, it is apparent from that letter that registration with the bar association ‘confers not insignificant advantages in terms of insurance’ and that the fees payable to the association ‘are, in fact, essentially made up of insurance premiums paid by the association’, and also that, in recognition of the fact that Mr JN was undertaking very little work as a lawyer, though still registered with the association, the President offered to reduce the amount of the fees to that of the insurance premiums paid by the association, and to accept payment by instalments.

14.      In the absence of any reply or payment from Mr JN, reminders were sent to him on 11 December 2015 and 21 December 2016. Those letters having gone unanswered, the bar association demanded payment of Mr JN’s annual fees by formal notice of 23 January 2017.

15.      Following that notice, Mr JN wrote to the association explaining that he was in financial difficulties and unable to pay more than EUR 100 per month towards the fees demanded.

16.      No payment being forthcoming from Mr JN, however, the Dinant Bar Association issued a summons, dated 17 May 2017, for him to appear before the tribunal de première instance de Namur (Court of First Instance, Namur) — the referring court — seeking an order for the payment of EUR 7 277.70 together with interest and the costs and expenses of the proceedings.

17.      By letter of 16 May 2017 to the President of the Dinant Bar Association, Mr JN asked to be removed from the register and to be allowed to spread his payments over a period of 24 months.

18.      Before the referring court, Mr JN disputed that that court had jurisdiction under the Brussels Ia Regulation. He submits that registration with the Dinant Bar Association for the purpose of practising as a lawyer is not a contractual matter for the purposes of Article 7(1) of that regulation, in that such registration does not reflect a contract arising from the exercise of free will and freedom of choice, but an administrative formality and a legal obligation.

19.      The Dinant Bar Association, on the other hand, submits that by maintaining his registration with the association, Mr JN entered into a commitment vis-à-vis that association to pay the annual fees it determines, and that that commitment should accordingly be treated as contractual for the purposes of Article 7(1) of the Brussels Ia Regulation.

20.      Against that background, the referring court wishes to know whether Article 7(1) of that regulation is applicable in the present case and, in particular, whether the interpretation given by the Court in its judgment in Peters Bauunternehmung (3) can be applied. In that case, the Court held that obligations which have their basis in the relationship between an association and its members must be regarded as ‘matters relating to a contract’ within the meaning of that provision.

21.      In those circumstances, by decision of 21 June 2018, received at the Court on 28 June 2018, the tribunal de première instance de Namur (Court of First Instance, Namur) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is the action brought by a Bar Association seeking an order that one of its members pay the annual professional fees owed to it a matter “relating to a contract” within the meaning of Article 7(1) of [the Brussels Ia Regulation]?’

22.      Written observations were submitted by the Italian and Lithuanian Governments and by the European Commission.

IV.    Analysis

23.      By the question it has referred for a preliminary ruling, the referring court asks whether an action brought by a bar association for an order that one of its members pay the annual professional fees owed to it is a matter ‘relating to a contract’ within the meaning of Article 7(1) of the Brussels Ia Regulation.

24.      I note at the outset that the Commission doubts that the Brussels Ia Regulation applies to the main proceedings, given that certain disputes between a public body and a person governed by private law are excluded from the scope of that regulation, and that the Ordre des barreaux francophones et germanophone (Association of the French-speaking and German-speaking bars, ‘OBFG’), of which the Dinant Bar Association is part, is a legal person governed by public law.

25.      Since the referring court has not put forward a question on this point, or made any comments about it in the order for reference, I assume that it considers the Brussels Ia Regulation to be applicable in the main proceedings.

26.      Nonetheless, in the light of the Commission’s observations, I will make some preliminary remarks on this issue, in Section A below. Since the national file before the Court does not contain sufficient information in this regard, those remarks will be limited to general observations enabling the referring court to ascertain whether the Brussels Ia Regulation applies to the dispute in the main proceedings.

27.      I will go on to consider the question referred, which seeks to establish whether an action such as that before the referring court comes within the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of that regulation (Section B).

A.      The scope of the Brussels Ia Regulation

28.      By virtue of the first sentence of Article 1(1), the Brussels Ia Regulation applies ‘in civil and commercial matters’.

29.      In accordance with settled case-law of the Court, the concept of ‘civil and commercial matters’ is an autonomous concept to be interpreted by reference, first, to the objectives and scheme of the Brussels Ia Regulation and, secondly, to the general principles which stem from the corpus of the national legal systems. Moreover, the need to ensure the good functioning of the internal market and to ensure, in the interests of the harmonious administration of justice, that irreconcilable judgments will not be given in two Member States require a broad interpretation of that concept of ‘civil and commercial matters’. (4)

30.      The interpretation of the concept of ‘civil and commercial matters’ resulted in the exclusion of certain judicial decisions from the scope of the Brussels Ia Regulation, by reason either of the legal relationships between the parties to the action or of the subject matter of the action. (5)

31.      Thus, the Court has held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Ia Regulation, it is otherwise where the public authority is acting in the exercise of its public powers. (6) The exercise of public powers by one of the parties to the case, because it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, excludes such a case from civil and commercial matters within the meaning of Article 1(1) of that regulation. (7)

32.      In the present case, as I mentioned in point 24 above, the Commission has observed that the OBFG, of which the Dinant Bar Association is part, is a legal person governed by public law which has legal personality and is governed, as regards its organisation and functioning, by the Belgian Judicial Code. (8)

33.      I note that, under that code, the OBFG is responsible for upholding the honour, rights and common professional interests of members of the bar, and that it is given various powers to that end. (9)

34.      It would thus appear that the Dinant Bar Association, as part of the OBFG, has a public service function, that of guaranteeing integrity and experience to final consumers of legal services and ensuring the sound administration of justice. (10)

35.      Supposing that that is indeed the case, which it is for the referring court to verify, it is necessary, in order to establish whether the Brussels Ia Regulation applies to the dispute in the main proceedings, to determine whether, in requiring the payment of the annual fees at issue in the main proceedings, the Dinant Bar Association is acting in the exercise of public powers.

36.      In order to make that determination, it is necessary to examine the nature of the annual fees, (11) as well as the basis and detailed rules for the bringing of the action. (12)

37.      As regards the nature of the annual fees, they do not seem to me to reflect an exercise of public powers.

38.      Under Article 433 of the Belgian Judicial Code, the Council of the Bar Association can oblige the lawyers registered with the association to pay the contributions it determines. The Commission observes in this regard that it appears from Article 2 of the OBFG’s regulations that, in a more practical sense, the fees are determined by the general assembly of the OBFG.

39.      As I have indicated, it is apparent from the letter of 29 May 2015 from the President of the Dinant Bar Association to Mr JN that the annual fees payable to the association are essentially made up of insurance premiums paid by the association, and that membership of the association has advantages in terms of insurance. (13) I take this to mean that the OBFG has taken out a policy of mandatory professional indemnity insurance with an insurance company, on behalf of the lawyers registered with it.

40.      Furthermore, and again as I have indicated, it is apparent from that letter that the association would be prepared to reduce the amount of the fees to the level corresponding to the insurance premiums paid by the association. (14)

41.      It seems to me, at least in those circumstances, that the fees are not payments due in respect of a public service, and therefore outside the scope of the Brussels Ia Regulation, (15) but remuneration for a service provided by the bar association — a view the Commission appears to share.

42.      Equally, as regards the basis of the action and the detailed rules pursuant to which it is brought, it seems to me, as the Commission states in its observations, that these do not reflect an exercise of public powers.

43.      As the Commission observes, it appears that, in order to obtain payment of the annual fees which are due, the bar association is obliged to bring legal proceedings, and that it has no other means of obtaining such payment, such as the adoption of a public law measure which is enforceable in itself.

44.      Having regard to all of the foregoing, it will be for the referring court to determine whether the dispute in the main proceedings falls within the scope of the Brussels Ia Regulation. At first sight, it seems to me that it does.

45.      In developing the considerations set out below, I assume that the dispute in the main proceedings falls within the meaning of ‘civil and commercial matters’ in Article 1(1) of the Brussels Ia Regulation, and is accordingly within the scope of that regulation.

B.      Applicability of Article 7(1) of the Brussels Ia Regulation

46.      The question referred falls within the context of a line of case-law on the interpretation of the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels Ia Regulation. (16) Since the question must be answered in the light of that case-law, I consider it necessary to set out some aspects of it, in section 1 below, before going on to consider the question referred, in section 2.

1.      The case-law of the Court on the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels Ia Regulation

47.      As a preliminary matter, I would point out that the rules of jurisdiction laid down in Chapter II of the Brussels Ia Regulation are based on the general principle, set out in Article 4(1) of that regulation, that persons domiciled in a Member State are to be sued in the courts of that State. (17)

48.      That principle is supplemented, however, by other rules conferring jurisdiction on the basis of a close connection between the court and the action, or in order to facilitate the sound administration of justice — including the rule contained in Article 7(1) of the Brussels Ia Regulation, concerning ‘matters relating to a contract’. (18)

49.      The concept of ‘matters relating to a contract’ referred to in Article 7(1) is an independent concept which must be interpreted by reference chiefly to the system and objectives of that regulation. (19)

50.      In this regard, it is settled case-law of the Court that although Article 7(1) of the Brussels Ia Regulation does not require the conclusion of a contract, it is nevertheless essential, for that provision to apply, to identify an obligation, since the jurisdiction of the national court under that provision is determined by the place of performance of the obligation in question. Thus, the concept of ‘matters relating to a contract’ within the meaning of that provision is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another. (20)

51.      Consequently, the application of the rule of special jurisdiction provided for matters relating to a contract in Article 7(1) of the Brussels Ia Regulation presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based. (21)

52.      In this regard I would, first of all, reiterate that it is apparent from the judgment in Peters Bauunternehmung, which is cited by the referring court, (22) that obligations which have their basis in the relationship between an association and its members must be regarded as freely consented to.

53.      The case which gave rise to that judgment concerned the classification of a payment obligation arising out of an undertaking’s voluntary membership of an association of undertakings. The sums in question had become payable by that undertaking by virtue of an internal rule adopted by the organs of the association and binding on its members. (23)

54.      The Court held in this regard that ‘membership of an association creates between the members close links of the same kind as those which are created between the parties to a contract’, such that the obligations at issue could be regarded as contractual for the purpose of the application of Article 7(1) of the Brussels Ia Regulation. It added that it was immaterial, in this regard, whether the obligation arose simply from the act of becoming a member, or from that act in conjunction with a decision of an organ of the association. (24)

55.      Subsequently, the Court applied that case-law by analogy in the judgment in Powell Duffryn, (25) holding that a company’s statutes must be regarded as a contract covering both the relations between the shareholders and also the relations between them and the company they set up. The Court observed that the setting up of a company is the expression of the existence of a community of interests between the shareholders in the pursuit of a common objective, and that, in order to achieve that objective, each shareholder is assigned, as regards other shareholders and the organs of the company, rights and obligations set out in the company’s statutes. It concluded that a clause conferring jurisdiction in the statutes of a company limited by shares is an agreement which is binding on all the shareholders. (26)

56.      As the Court explained, by becoming and by remaining a shareholder in a company, the shareholder agrees to be subject to all the provisions appearing in the statutes of the company and to the decisions adopted by the organs of the company, in accordance with the provisions of the applicable national law and the statutes, even if he does not agree with some of those provisions or decisions. (27)

57.      In my view, the reasoning which underlies that case-law is that, where a natural or legal person voluntarily becomes a member of a legal person (such as an association or company), the former agrees to be subject to all the obligations arising from such membership, the concrete terms of which are determined by the statutes of the latter, and by the decisions of its organs, so as to create close links between the latter and its members, capable of being equated with contractual links.

58.      Finally, in the recent judgment in Kerr, (28) the Court had occasion to rule on the classification of a payment obligation arising from a decision taken by a general meeting of the owners’ association of a residential building, which did not have legal personality and had been specifically established by law in order to exercise certain rights. The decision, fixing the annual financial contributions to be made to the budget of the association in respect of maintenance of the communal areas of the building, was taken by a majority of the members but binding on all of them.

59.      Referring to the judgments cited above, the Court held that even if membership of an association of property owners was prescribed by law (the applicable Bulgarian law requiring communal areas to be managed by an owners’ association), the fact remained that the detailed arrangements for management of the communal areas of the building concerned were governed by contract and the association was joined through voluntary acquisition of an apartment together with ownership shares of the communal areas, so that the payment obligation at issue was to be regarded as a legal obligation freely consented to for the purposes of Article 7(1) of the Brussels Ia regulation. (29)

60.      The Court went on to state that the fact that the property owners in question had not been involved in adopting that decision or had opposed it, but, by virtue of the law, that decision and the ensuing obligation were binding on them, had no effect on the application of Article 7(1), since, by becoming and remaining the owner of a property in a building, each owner had agreed to be subject to all the provisions in the act governing the association of property owners concerned and the decisions adopted by the general meeting of the owners of property in that building. (30)

61.      The question which has been referred for a preliminary ruling in this case must be examined in the light of those authorities.

2.      The applicability of Article 7(1) of the Brussels Ia Regulation in a situation such as that at issue in the main proceedings

62.      In accordance with the case-law referred to above, it is necessary, in order to answer the question referred, to determine whether the obligation to pay annual fees constitutes an obligation freely consented to for the purposes of Article 7(1) of the Brussels Ia Regulation.

63.      In the particular circumstances of this case it is necessary, more specifically, to determine whether the fact that membership of the bar association is required, under the Belgian Judicial Code, in order to pursue the profession of lawyer, prevents the obligation to pay fees which arises from such membership being regarded as a legal obligation freely consented to.

64.      The Italian and Lithuanian Governments consider that it does not.

65.      Those governments essentially submit that the obligation to pay the fees is, in essence, an obligation freely consented to, on the basis that a person who becomes a lawyer freely expresses an intention to practise in that profession, which carries with it an obligation to join a professional association and, consequently, to pay the fees determined by that association. Applying the principle in Peters Bauunternehmung, (31) the Italian and Lithuanian Governments maintain that the membership links between the association and the lawyers are of the same kind as those which are created between the parties to a contract. They submit that a professional association can be treated in the same way as associations generally, and that the obligations of its members have their basis in the agreement which creates the membership link. By entering into that agreement, the contracting parties evince an intention to accept the internal rules governing the body, which implies, amongst other things, a commitment to pay the fees determined by that body.

66.      Furthermore, the Italian and Lithuanian Governments observe that their proposed interpretation is justified by the particular link between the place of performance of the obligation and the court of that place, the national court for the place where the bar association has its seat being best fitted to adjudicate on the dispute. (32)

67.      The Commission, on the other hand, considers that an action such as that before the referring court does not fall within the meaning of ‘matters relating to a contract’ in Article 7(1) of the Brussels Ia Regulation, since membership of the bar association, which gives rise to the obligation to pay annual fees, is a legal requirement which must be met in order to practise as a lawyer, there being no question of choice or derogation. In that regard, the Commission observes, amongst other things, that the present case differs from that which gave rise to the judgment in Peters Bauunternehmung (33) in that, in the latter case, the undertaking had chosen to become a member of the association.

68.      In addition, the Commission submits, it would not be appropriate to circumvent the requirement for an obligation freely consented to by reference to the general objectives of the Brussels Ia Regulation as regards special jurisdiction, which would also create a risk, in practice, of jurisdiction being too readily conferred on the court of the applicant, contrary to the general rule in Article 4(1) of the regulation.

69.      I admit that the answer to the question referred is less than obvious.

70.      It is true that the circumstances of the dispute in the main proceedings are somewhat analogous to those of the cases which gave rise to the judgments in Peters Bauunternehmung (34) and Powell Duffryn, (35) referred to above, in that the main proceedings also concern relations between a legal person and its members, and relate to a payment obligation imposed on the members of that legal person by a decision which it has taken.

71.      However, as the Commission rightly points out, the circumstances of the dispute in the main proceedings differ from those of the two cases just referred to in that registration with the bar association, which gives rise to the obligation to pay the annual fees determined by it, is required, under the first paragraph of Article 428 of the Belgian Judicial Code, in order to practise as a lawyer.

72.      I reiterate that the requirement of membership of the bar association is linked to the fact that that association has a public service function. (36) From that point of view, I do not consider that it can be treated in the same way as an association governed by private law, or a company governed by private law, as in the judgments referred to above, in which the Court gave it to be understood that all links between such legal persons and their members are contractual in nature. (37)

73.      Consequently, I do not accept the view of the Italian and Lithuanian Governments that the membership links between the association and its members are, in a general sense, of the same kind as those created between the parties to a contract.

74.      As I observed in points 28 to 45 of this Opinion, in relation to the applicability of the Brussels Ia Regulation as regards a bar association, a distinction must be drawn between two types of dispute: disputes concerning those links between the association and its members which are of a public law character, and which are accordingly outside the scope of the regulation, and disputes concerning those links between the association and its members which are of a private law character, and which thus fall within the scope of the regulation.

75.      It is only in relation to the second type of dispute that an action can constitute a matter relating to a contract, in so far as it concerns an obligation freely consented to.

76.      On that point, as regards the main proceedings — which belong to that second category — I incline to the view that the obligation to pay the fees determined by the association does constitute an obligation freely consented to for the purposes of Article 7(1) of the Brussels Ia Regulation, such that an action relating to that obligation is a matter relating to a contract within the meaning of that provision.

77.      As regards the issue referred to in point 63 of this Opinion, I consider that the judgment in Kerr (38) sets out considerations which are relevant for the purposes of interpretation.

78.      Thus, while the judgment in Kerr (39) concerns an obligation to pay co-ownership charges, it nevertheless follows from that judgment, as I see it, that the fact that national legislation makes the exercise of a certain activity conditional on membership of a body does not necessarily mean that an obligation arising from such membership cannot be classified as a legal obligation freely consented to for the purposes of Article 7(1) of the Brussels Ia Regulation.

79.      As to this, I observe that in that judgment, the Court, while noting that membership of the owners’ association was required by law, emphasised two features of the obligation to pay the co-ownership charges which justified its classification as an obligation freely consented to: the fact that the association was joined through voluntary acquisition of an apartment together with ownership shares of the communal areas of the building in question, and the fact that the detailed arrangements for management of the communal areas of the building concerned were governed by contract, or in other words by mutual agreement between the co-owners.

80.      In my view, there is a certain similarity between the facts of the dispute in the main proceedings and those of the case which gave rise to the judgment in Kerr. (40)

81.      It is true that registration with the bar association is a legal requirement reflecting the way in which the profession of lawyer is regulated in national law.

82.      Nevertheless, registration was effected by a step which Mr JN took voluntarily, so as to become a lawyer and practise as such in Belgium, until his removal from the register in 2017. Through the choice he thus made, Mr JN accepted that he would be subject to the rules of the profession, including those empowering the Council of the Bar Association to require registered lawyers to pay annual fees. As regards the period to which the fees at issue relate, I would point out that, while it appears that Mr JN undertook very little work as a lawyer, (41) he chose to remain a member of the association. There was nothing to prevent him requesting his removal from the register before 2017, if he did not perceive any advantage in remaining registered.

83.      Furthermore, the obligation to pay fees is not imposed by law, in so far as the Belgian Judicial Code does not prescribe either the nature or the amount of the fees.

84.      Subject to verification by the referring court, it appears that the fees which the association is seeking to recover in the main proceedings were decided upon, as regards their amount and the purpose for which they were to be used, by the association to which the applicant belongs, within which he has the ability to influence the collective rules laid down by the profession. Thus, the fees claimed arise from close links between the association and Mr JN, similar to those created by contract. By becoming and remaining a lawyer registered with the association, Mr JN freely accepted that he would be subject to the obligation to pay the fees.

85.      I reiterate, in this regard, that the fees correspond to a service provided by the association in taking out collective professional insurance; the applicant obtains the corresponding benefit, in the exercise of his profession, by choosing to remain registered with the Dinant Bar Association.

86.      Accordingly, this is not a situation in which the payment obligation has been fixed unilaterally by law, as was the case in the judgment in Austro-Mechana. (42)

87.      In the case giving rise to that judgment, which related to the classification of an undertaking’s obligation to pay remuneration to a copyright-collecting society, the Court held that such an obligation was not freely consented to for the purposes of Article 7(1) of the Brussels Ia Regulation, on the basis that it had been imposed on the undertaking by national law as a result of recording materials having being placed on the market, in accordance with Austrian legislation. (43)

88.      To conclude, while acknowledging that the question referred in this matter is a borderline case, I am inclined to take the view, in the light of the case-law of the Court — which, moreover, demonstrates that that the concept of ‘matters relating to a contract’ is not interpreted narrowly (44) — that, on the basis of the considerations set out in this Opinion, the obligation to pay annual fees in the present case was freely consented to for the purposes of Article 7(1) of the Brussels Ia Regulation.

89.      Furthermore, support for this approach is to be found in the objectives pursued by the Brussels Ia Regulation.

90.      I would point out that in addition to the defendant’s domicile, there are alternative grounds of jurisdiction based on a close connection between the court and the action, or in order to facilitate the sound administration of justice.

91.      As to grounds based on a close connection, in the judgment in Peters Bauunternehmung (45) the Court emphasised that ‘since under national legal systems it is usually stipulated that the place in which the association is established is to be the place of performance of obligations arising out of the act of becoming a member, the application of [the rule of jurisdiction in contractual matters] also has practical advantages: the court for the place in which the association has its seat is in fact usually the best fitted to understand the documents of constitution, rules and decisions of the association, and also the circumstances out of which the dispute arose’.

92.      In the present case, in so far as the referring court considers that it is the court for the place of performance of the obligation in question within the meaning of the rules laid down in Article 7(1)(a) to (c) of the Brussels Ia Regulation, which seems to me to be the case, (46) it has jurisdiction to hear the dispute in the main proceedings.

93.      As the Italian and Lithuanian Governments point out in this regard, that court must be regarded as the best fitted to understand the documents of constitution, rules and decisions of the Dinant Bar Association, as well as the circumstances which gave rise to the dispute. In other words, the factor which justifies the special jurisdiction provided for in Article 7(1) of the Brussels Ia Regulation — that of a close connection between the court and the dispute — is present in the main proceedings.

94.      Furthermore, as the Italian Government rightly observes, this approach also avoids a situation in which claims for payment against lawyers potentially domiciled in different Member States, and questions relating to the validity of the decisions on which those claims are based, are heard by different courts. (47) In other words, my proposed approach is also in line with the objective of sound administration of justice.

V.      Conclusion

95.      In the light of all the foregoing considerations, I propose that the Court answer the question referred by the tribunal de première instance de Namur (Court of First Instance, Namur, Belgium) as follows:

Article 7(1) of Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that an action concerning an obligation to pay annual fees made up essentially of insurance premiums and arising from a decision of a bar association — which it is for the referring court to verify — must, in circumstances where national law requires lawyers to register with that association, be regarded as coming within the concept of ‘matters relating to a contract’ within the meaning of that article.


1      Original language: French.


2      Regulation of the European Parliament and of the Council of 12 December 2012 (OJ 2012 L 351, p. 1).


3      Judgment of 22 March 1983 (34/82, EU:C:1983:87).


4      See, in particular, judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraphs 46 and 47 and the case-law cited). I note that the case-law developed in relation to Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) and the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by subsequent Conventions on the accession of new Member States to that convention, also applies to the Brussels Ia Regulation, whenever the provisions in question can be regarded as equivalent (see, to that effect, judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 27), and of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 31)). That is so in relation to the provisions which are relevant in the present case, namely Article 1(1) of the Brussels Ia Regulation (see, in particular, judgments of 11 April 2013, Sapir and Others (C‑645/11, EU:C:2013:228, paragraphs 31 and 32), and of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraphs 31 and 32)) and Article 7(1) of that regulation (see, in particular, judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraphs 43 and 44), and of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 20)). Accordingly, in the remainder of this Opinion, all references will be to the Brussels Ia Regulation, though I will cite the case-law relating to the instruments which preceded it.


5      See, in particular, judgments of 14 October 1976, LTU (29/76, EU:C:1976:137, paragraph 4), and of 28 April 2009, Apostolides (C‑420/07, EU:C:2009:271, paragraph 42 and the case-law cited).


6      See, in particular, judgment of 11 April 2013, Sapir and Others (C‑645/11, EU:C:2013:228, paragraph 33 and the case-law cited).


7      See, in particular, judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraph 49).


8      In this regard the Commission refers, in particular, to the OBFG’s website (updated on 26 August 2014), https://avocats.be/sites/default/files/texte_apropos_avocatsBE3.pdf


9      See Article 495(1) of the Belgian Judicial Code.


10      I note in this regard that the Court has recognised the need to make rules relating to organisation, qualifications, professional ethics, supervision and liability, so as to provide such guarantees (see, in particular, judgments of 12 December 1996, Reisebüro Broede (C‑3/95, EU:C:1996:487, paragraph 38), and of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98, paragraph 97)).


11      See the case-law cited in footnote 15 to this Opinion.


12      See, to that effect, in particular, judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraph 48 and the case-law cited).


13      See point 13 of this Opinion.


14      See point 13 of this Opinion.


15      The Court has held that a public authority is acting in the exercise of public powers where the dispute concerns the recovery of charges payable by a person governed by private law to a body governed by public law for the use of equipment and services provided by such body, in particular where such use is obligatory and exclusive, and that this applies in particular where the rate of charges, the methods of calculation and the procedures for collection are fixed unilaterally in relation to the users (see, in particular, judgments of 14 October 1976, LTU, (29/76, EU:C:1976:137, paragraph 4); of 15 February 2007, Lechouritou and Others, (C‑292/05, EU:C:2007:102, paragraph 32); and of 11 June 2015, Fahnenbrock and Others (C‑226/13, C‑245/13 and C‑247/13, EU:C:2015:383, paragraph 52)).


16      As regards this case-law, see footnote 4 to this Opinion.


17      See, to that effect, recital 15 of the Brussels Ia Regulation and judgment of 12 September 2018, Löber (C‑304/17, EU:C:2018:701, paragraph 18 and the case-law cited).


18      See, to that effect, recital 16 of the Brussels Ia Regulation and judgment of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraph 36).


19      See, in particular, judgment of 22 March 1983, Peters Bauunternehmung (34/82, EU:C:1983:87, paragraph 10), and judgment of 17 June 1992, Handte (C‑26/91, EU:C:1992:268, paragraph 10).


20      See, in particular, judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 46); of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 39); and of 21 April 2016, Austro-Mechana (C‑572/14, EU:C:2016:286, paragraph 35).


21      See, in particular, judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 47); of 18 July 2013, ÖFAB (C‑147/12, EU:C:2013:490, paragraph 33); and of 21 April 2016, Austro-Mechana (C‑572/14, EU:C:2016:286, paragraph 36).


22      Judgment of 22 March 1983 (34/82, EU:C:1983:87). See point 20 of this Opinion.


23      See judgment of 22 March 1983, Peters Bauunternehmung (34/82, EU:C: 1983:87, paragraph 2).


24      See judgment of 22 March 1983, Peters Bauunternehmung (34/82, EU:C: 1983:87, paragraphs 13 to 18).


25      Judgment of 10 March 1992 (C‑214/89, EU:C:1992:115).


26      See judgment of 10 March 1992, Powell Duffryn (C‑214/89, EU:C:1992:115, paragraphs 16 to 18).


27      See judgment of 10 March 1992, Powell Duffryn (C‑214/89, EU:C:1992:115, paragraph 19). Similarly, the Court has accepted that the same kind of free consent exists in the exercise of the powers of a manager under company law, holding that the activity of a manager creates close links of the same kind as those which are created between the parties to a contract and that, as a consequence, an action brought by a company against its former manager on the basis of an alleged breach of his company law obligations came within the concept of ‘matters relating to contract’. In this regard, the Court emphasised that the manager and the company ‘freely assumed mutual obligations in that [the manager] chose to manage and administer that company, and the company undertook to remunerate him for those services, so that their relationship may be regarded as being contractual in nature’ (judgment of 10 September 2015, Holterman Ferho Exploitatie and Others (C‑47/14, EU:C:2015:574, paragraphs 53 and 54)).


28      Judgment of 8 May 2019 (C‑25/18, EU:C:2019:376). I note that this judgment was delivered after the closure of the written procedure in the present case.


29      See judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraphs 26 to 28).


30      See judgment of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 29).


31      Judgment of 22 March 1983 (34/82, EU:C:1983:87).


32      Those governments thus make their submissions on the basis that the referring court is the court for the place of performance of the obligation on which the action is based, within the meaning of the rules in Article 7(1)(a) to (c) of the Brussels Ia Regulation; as to this, see footnote 46.


33      Judgment of 22 March 1983 (34/82, EU:C:1983:87).


34      Judgment of 22 March 1983 (34/82, EU:C:1983:87).


35      Judgment of 10 March 1992 (C‑214/89, EU:C:1992:115).


36      See point 34 of this Opinion.


37      I also note that the European Court of Human Rights has held that bar associations cannot be regarded as associations within the meaning of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which protects freedom of association, including the negative right not to be forced to join an association. Accordingly, lawyers are excluded from the protection of that article as regards registration with a professional association (see ECtHR, 2 July 1990, M.A. and Others v. Spain, CE:ECHR:1990:0702DEC001375088).


38      Judgment of 8 May 2019 (C‑25/18, EU:C:2019:376).


39      Judgment of 8 May 2019 (C‑25/18, EU:C:2019:376).


40      Judgment of 8 May 2019 (C‑25/18, EU:C:2019:376).


41      See point 13 of this Opinion.


42      Judgment of 21 April 2016 (C‑572/14, EU:C:2016:286, paragraph 37).


43      See judgment of 21 April 2016, Austro-Mechana (C‑572/14, EU:C:2016:286, paragraphs 18 and 37). I would point out that, in that case, the legislation also laid down the detailed arrangements for payment. Similarly, the Court has held that the obligations owed by a company shareholder to third parties, under national law, are not freely consented to for the purposes of Article 7(1) of the Brussels Ia Regulation (see judgment of 18 July 2013, ÖFAB (C‑147/12, EU:C:2013:490, points 34 to 36)).


44      It is true that the Court often describes Article 7(1) of the Brussels Ia Regulation as a derogation from the general rule, contained in Article 4(1) of that regulation, that the court of the applicant has jurisdiction, stating that, as a derogation, Article 7(1) must be interpreted strictly (see, to that effect, judgment of 12 September 2018, Löber (C‑304/17, EU:C:2018:701, paragraphs 17 and 18 and the case-law cited). Nonetheless, in my view, the way in which the Court has applied Article 7(1) of the regulation shows that the concept of ‘matters relating to a contract’ is not interpreted narrowly; indeed, this was confirmed by the Court in the judgment of 20 January 2005, Engler (C‑27/02, EU:C:2005:33, paragraph 48), where it referred specifically to the judgments in Peters Bauunternehmung and Powell Duffryn (see, to the same effect, the Opinion of Advocate General Kokott in Kerr (C‑25/18, EU:C:2019:86, point 51)).


45      Judgment of 22 March 1983 (34/82, EU:C:1983:87, paragraph 14).


46      I would point out that an answer to the question referred will not, by itself, enable it to be determined whether the referring court has jurisdiction to hear the dispute in the main proceedings. To make that determination, it is also necessary to consider whether the referring court is the court for the place of performance of the obligation in question within the meaning of the rules laid down in Article 7(1)(a) to (c) of the Brussels Ia Regulation. The national court has not referred a question on that point, or made any comments about it, which would seem to indicate that it does consider itself to be the court for the place of performance of the obligation in question, within the meaning of Article 7(1).


47      See, to that effect, judgment of 10 March 1992, Powell Duffryn (C‑214/89, EU:C:1992:115, paragraph 20).