Committeri v Club Méditerranée SA (t/a Club Med Business)

For Rome I and Rome II, an obligation is characterised by its source and substance, rather than by the pleading label or its classification under national law. A claim is contractual where a freely assumed contract is the underlying source of the rights and obligations in dispute and is indispensable to establishing breach and loss.

A statutory rule imposing strict liability for proper performance of contractual obligations enhances the contractual right. It does not create a freestanding non-contractual obligation. This remains so where the contract was made by a principal contractor for the claimant’s benefit.

BNP Paribas contracted with Club Méditerranée to provide its employees, including Mr Committeri, with travel, accommodation and activities in Chamonix. Mr Committeri was injured while climbing an ice wall and sued Club Med and its insurer, relying principally on Article L-211-16 of the French Code de Tourisme.

Dingemans J held that the claim was contractual for the purposes of Rome I and Rome II and that, because the contract contained an English-law clause, the claim failed: [2016] EWHC 1510 (QB). The appeal concerned whether the statutory strict-liability claim was contractual or non-contractual, and whether the judge was entitled to treat French law as supporting a contractual characterisation.

Coulson LJ gave the leading judgment, with which Moylan and Simon LJJ agreed. The appeal was dismissed.

1. Characterisation. The dispositive question was whether the pleaded strict-liability claim was contractual or non-contractual under autonomous European-law principles. The court adopted a reality-and-substance approach. The claim expressly relied on obligations arising under the contract between BNP and Club Med and sought damages for breach of those obligations. The contract was therefore indispensable to the claim.
2. Statutory strict liability. Article L-211-16 of the French Code de Tourisme enhanced the contractual obligations by making the respondent prima facie liable for their proper performance, subject to the statutory exceptions. It did not itself impose a freestanding obligation or create a different right unconnected with the contract.
3. European authorities. Brogsitter v Fabrication de Montres Normandes EURL [2014] QB 753, Ergo Insurance SE v IF P&C Insurance AS [2016] I.L. Pr 20 and Verein Fur Konsumenteninformation v Amazon EU SARL [2017] QB 252 supported classification by the source of the obligation, including whether a freely consented contractual commitment was the basis of the action. The court also applied the substance-based approach in Bosworth and Another v Arcadia Petroleum Limited and Others [2016] EWCA Civ 818. The contract here was not merely background or a stepping stone to liability.
4. Beneficiary. The fact that BNP, rather than the appellant personally, entered the contract did not prevent Rome I applying. The contract was made for the benefit of the appellant, who fell within the Directive’s concept of consumer.
5. French law. The appellant’s experts had agreed that a claim under Article L-211-16 was contractual in French law. The appellant could not fairly advance the contrary case without challenging the relevant evidence. The judge was entitled to proceed on that agreed basis. His observations on the Cour de Cassation decision of 17 November 2011 were consistent with the expert evidence.
6. Orders. Ground 1 and, in any event, Ground 2 were rejected. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal, rejecting both grounds; [2018] EWCA Civ 1889.
• High Court (Queen’s Bench Division): Dingemans J held that the claim under Article L-211-16 was contractual and governed by Rome I; [2016] EWHC 1510 (QB).