It follows that each case depends on its specific facts, and whether, in light of all considerations, the activities were performed in the exercise of public powers. The case law of the Court was useful again, as the AG examined past decisions and their reasonings. In Kuhn (C‑308/17) for instance, the Court focused on the public interest objective of the activities and on whether the dispute stemmed from a manifestation of public authority. That is not to mean that the objective of an action is in itself sufficient to exclude it from the scope of “civil and commercial matters”. This was showcased in Pula Parking (C‑551/15), where it was stated that “acting in an interest comparable to the general or public interest” does not mean “acting in the exercise of public powers” within the meaning given by the Court.
Having established that it is the recourse to public powers that excludes activities from the scope of Brussels I, the AG proceeded to identify the range of powers used by the defendants, in performing the activities in question.
The defendants might have acted as a public authority in the context of their relationship with the shipowner, but this definitely does not mean that they retain that status of public authority in regard to other private individuals, such as the claimants.
As for the contractual relationship between the defendants and the shipowner, it is important to note that the former were chosen from a number of organisations carrying out classification and certification activities on behalf of Panama. Their private-law agreement, the terms of which were decided in the exercise of freedom of contract, did not dispose of the exclusive competence retained by the delegating state in relation to the activities.
In this sense, even in so far as the defendants had corrective powers in case of non-conformity, they would be able to exercise them solely within the terms of the agreement to which the shipowner had previously consented, and the pre-defined regulatory framework provided and controlled by the Republic of Panama. This is supported by the case Rina Services and Others (C‑593/13), where certification bodies were held to be commercial undertakings performing their activities in conditions of competition and without power to make decisions connected with the exercise of public powers.
In light of the above, the AG reached the interim conclusion that the classification and certitifcation activies in question fall within the scope of “commercial and civil matters” as interpreted by the Court. Consequently, Brussels I was found to apply ratione materiae to the dispute, and since the defendants are domiciled in a member state, the Italian Courts derive their jurisdiction from the regulation.
At this point, the AG had to consider whether the defendants can rely on jurisdictional immunity under international law, and if so, whether the referring court can nevertheless hear the case or must instead decline to exercise the jurisdiction it derives from Brussels I.