Opinion of the Advocate General — ECLI:EU:C:1999:146
Date: 1999-03-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction
Procedure: Reference for a preliminary ruling
Origin: France

summary of the case-law 
12. Just as a reminder, I shall review briefly 
the Court's case-law on Article 5, point (1), 
of the Convention in so far as it is relevant 
to the present case. 
13. The Tessili case produced the first 
judgment on the subject. On that occasion, 
the Court found that the place of perfor­
mance of the seller's obligation to guaran­
tee against hidden defects in goods was to 
be determined in accordance with the law 
applicable to the contract of sale according 
to the rules of conflict of laws of the court 
before which the matter was brought. 
In another judgment, delivered on the same 
day in the De Bloos case, 5 the Court made 
it clear, with regard to the former wording 
of Article 5, that the contractual obligation 
to be taken into account was that on which 
the action was based. 6 
14. The Court allowed only one exception 
to the general rule laid down in the Tessili 
judgment. I refer to the obligations arising 
from a contract of employment. In Ivenel 7 
the Court held that, among all the obliga­
tions arising under a contract of employ­
ment, the only obligation to be taken into 
account for the purposes of the application 
of Article 5, point (1), of the Convention, 
was the obligation which 'characterised' 
the contract. This obligation was to be 
deemed to have been performed in practice 
at the place where the worker supplied his 
services. 8 The Court refused to extend this 
interpretation to other situations. 9 
15. In Custom Made, cited above, in spite 
of the Opinion of Advocate General Lenz, 
who proposed that the court of the place 
having the closest connection with the 
dispute should have jurisdiction, the Court 
preferred to abide by its traditional 
method: the place of performance was to 
be determined pursuant to the substantive 
law governing the obligation in dispute, 
even where that law incorporated the 1964 
5 — Case 14/76 [1976] ECR 1497. 
6 — This judgment led to the amendment of certain language 
versions of the Brussels Convention on the accession of the 
Kingdom of Denmark, Ireland and the United Kingdom. 
These versions now incorporate the wording used by the 
Court of Justice. Personally, I consider that it would have 
been preferable and more in conformity with the general 
scheme of Article 5 of the Convention to take account, for 
the purpose of defining the place of performance of a given 
obligation, only of the obligation characterising the legal 
relationship, or rather, for the same purpose, to disregard 
the 'non-characteristic' obligation, wnich is generally the 
obligation to pay a price. 
7 — Case 133/81 [1982] ECR 1891. 
8 — This 'judicial rectification' was also incorporated in the 
Brussels Convention, this time on the occasion of the 1989 
Convention on Accession. 
9 — See the judgment in Case 266/85 Sbenavai (1987] ECR 239. 
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GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
Uniform Law on the International Sale of 
Goods. 
V — The observations submitted to the 
Court 
(a) The observations of the parties to the 
main proceedings 
16. Counsel for GIE Group Concorde and 
the other plaintiffs contend that, by refer­
ring the present question to the Court of 
Justice, the Cour de Cassation is in essence 
asking the Court to abandon its settled 
case-law and to give an autonomous inter­
pretation to the phrase 'place of perfor­
mance of the obligation'. As no circum­
stances have arisen which would support 
this new development of case-law, the 
plaintiffs in the main proceedings consider 
that the place of performance of contrac­
tual obligations must continue to be deter­
mined in accordance with the substantive 
law applicable under the rules of conflict of 
the court before which the matter is 
brought. 
17. In their observations, the defendants 
Pro Line and the company insuring the 
vessel reach the same conclusion after 
stressing the considerable differences still 
existing in the various European legal 
systems with regard to the determination 
of the place of performance of a contrac­
tual obligation and the consequences which 
this has on ability to foresee the competent 
court in matters relating to a contract, 
desirable as that is. 
(b) The observations of the intervening 
governments 
18. The German Government supports an 
autonomous interpretation of 'the place of 
performance of the obligation'. As there are 
many different types of contract, the place 
of performance should be determined by 
reference to each type. Furthermore, 
according to the German Government, to 
maintain the necessary equilibrium 
between the parties, the place of perfor­
mance of a contract should be determined 
in each case according to the particular 
obligation in question. 
Thus, in the case of contracts for the sale or 
use of property in return for consideration, 
where the characteristic obligation is the 
basis of the action, the place of perfor­
mance could be determined to be the place 
where the immovable property is situated 
or where the movable property is located, 
depending on the stipulations of the con­
tract. 
In contracts for services other than con­
tracts of employment, the place of perfor­
mance could be deemed to be the place 
I -6313 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
where the service in question is to be 
mainly carried out, where it forms the basis 
of the action. 
On the other hand, where the action relates 
to the pecuniary consideration, the place of 
performance could be deemed to be the 
defendant's forum at the time when the 
contract was concluded. 
19. The United Kingdom Government also 
advocates an independent definition of 
'place of performance'. According to this 
Government, an independent definition 
would not only promote legal certainty 
and ensure the equality and uniformity of 
the rights and obligations arising under the 
Convention, but would also reduce, in 
accordance with the aims of the Conven­
tion, the potential for forum shopping. 10 
The United Kingdom adds that the practi­
cal application of an independent definition 
must be effected case by case. So far as the 
present case is concerned, as the action 
arises from the delivery of damaged goods 
on the basis of a contract of carriage, the 
place of performance of the obligation is 
the place at which it was agreed that those 
goods were to be delivered. 
20. The French Government accepts, 
firstly, that it has been found that certain 
national courts have had difficulty in 
applying the principles of the Tessili judg­
ment and that they have given rise to a 
certain lack of foreseeability with regard to 
the competent court in matters relating to a 
contract. However, as relationships creat­
ing obligations are not always governed by 
uniform legal rules, to permit the national 
court to designate the place of performance 
according to the de facto circumstances of 
each of those relationships would give rise 
to unforeseeability and, therefore, legal 
uncertainty. Consequently, the French Gov­
ernment considers that it is not desirable to 
accept the solution indirectly proposed by 
the Cour de Cassation, which would con­
sist in giving 'place of performance' an 
independent definition. 
21. The Italian Government agrees that 
Article 5, point (1), of the Convention has 
given rise to differing interpretations, and 
that is why the question whether it would 
be advisable to amend it, by the addition of 
a uniform point of connection, is now 
being studied. Therefore, it does not appear 
to be the right time to abandon the Tessili 
case-law. For the present, it would suffice 
to add the proviso that where, under 
Article 5, point (1), the defendant's forum 
has jurisdiction, it must be the same as the 
forum for the place of performance of the 
10 — Choosing a forum according to the advantages which may 
arise from the substantive (and even procedural) law 
applied there. 
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GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
obligation, understood uniformly as an 
autonomous concept by the court before 
which the matter is brought. 
(c) The Commission's observations 
22. According to the Commission, the 
Court's approach in Tessili was from the 
beginning an interim solution in so far as, 
at that time, it was not possible to arrive at 
a Community interpretation which would 
ensure the uniform application of Article 5, 
point (1), of the Brussels Convention. The 
Commission adds that this approach gives 
rise to certain practical and theoretical 
difficulties. The court before which the 
matter is brought must first establish, by 
reference to its own rules of conflict, the 
law applying to the obligation in question 
and must then determine the competent 
forum according to that law. However, this 
method departs from the general rule in 
private international law that the determi­
nation of the competent court is indepen­
dent of the determination of the applicable 
law. 
The Commission therefore proposes that 
the Court should interpret the term 'place 
of performance' independently. This is 
appropriate particularly in the case of 
contracts for carriage by sea, the specific 
characteristics of which make it difficult to 
apply the principles of the Tessili judgment 
effectively. After examining the existing 
possibilities of interpretation for determin­
ing the place for performance of the 
obligation to deliver goods without damage 
under a contract for the international 
carriage of goods by sea, the Commission 
favours 'the place where the goods have 
been or are to be delivered'. 
VI — Discussion of the solution adopted in 
Tessili 
23. The question on which the Cour de 
Cassation seeks a preliminary ruling does 
not appear in principle to require the 
attention of the full Court of Justice. The 
question relates to the interpretation of 
Article 5, point (1), of the Brussels Con­
vention, namely the meaning of 'place of 
performance of the obligation in question' 
for the purposes of this European code of 
procedure. However, the Court has been 
giving rulings on this question since 1976, 
when it gave what was to become the first 
judgment delivered on the subject of the 
Brussels Convention. To ascertain whether 
it has jurisdiction, the court before which 
the matter is brought 'must determine in 
accordance with its own rules of conflict of 
laws what is the law applicable to the legal 
relationship in question and define in 
accordance with that law the place of 
performance of the contractual obligation 
in question'. 1 1 This case-law was followed 
recently, in the same terms, in Custom 
Made 12 on a reference for a preliminary 
11 — See the Tessili judgment, cited in footnote 3, paragraph 13. 
12 — See the Custom Made judgment, cited in footnote 4, 
paragraph 26. 
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OPINION OF MR RUIZ-JARABO — CASE C-440/97 
ruling from the Bundesgerichtshof. The 
Court has been giving virtually the same 
answer for more than 20 years. 13 
24. It is true that, in relation to Tessili, the 
Custom Made case had a new element in so 
far as the law applicable to the legal 
relationship arose, not from the rules of 
conflict, but from a uniform law originat­
ing from a convention relating to interna­
tional transactions, namely the Uniform 
Law on the International Sale of Goods, 
annexed to the Hague Convention of 1 July 
1964. However, this reference is not valid 
in the present case. The Cour de Cassation 
does not indicate any particular feature of 
the present case which might justify a reply 
other than that already given by the Court 
in relation to the Tessili and Custom Made 
cases. Nor can it be said — at least, in my 
opinion — that the circumstances under­
lying the Custom Made judgment have 
changed appreciably. By referring once 
again the question of the interpretation of 
Article 5, point (1), of the Convention, the 
Cour de Cassation has exercised the right 
of the national courts, which has been 
recognised by the Court of Justice in 
relation to questions referred under Arti­
cle 177 of the EC Treaty, to refer settled 
questions of interpretation to the Court 
again, if they consider it desirable to do 
so. 14 
25. The Brussels Convention lays down a 
general rule (actor sequitur forum ret), 
known in almost all legal systems, that 
the courts of the defendant's domicile have 
jurisdiction. 15 However, in addition to this 
true general forum, the Convention creates 
other bases of jurisdiction, some of which 
are special or optional while others are 
exclusive. The former include that which 
interests us here: the plaintiff may sue the 
defendant in the courts for 'the place of 
performance of the obligation in question'. 
Later on I shall set out the reason for this 
special forum. For the present it is sufficient 
to say that a plaintiff who wishes to assert 
in court a right arising from a contractual 
obligation has the option of bringing an 
action, at his convenience, before at least 
two courts: that of the defendant's domicile 
and that for the place of performance of the 
obligation. 
26. The phrase 'place of performance of the 
obligation', seemingly so simple, soon gives 
rises to many questions. What is meant by 
'matters relating to a contract'? What 
obligation is referred to? The obligation 
to deliver the goods or to carry out the 
service, for example, or the obligation to 
pay the price ? How is the place of perfor­
mance to be determined? In accordance 
with which law? The law of the court 
before which the matter is brought, or 
some other law? 
27. Since its judgment in Tessili, the Court 
has given replies to all these questions. 13 — The only new departure, in relation to the performance of 
obligations arising from a contract of employment, was in 
answer to a specific criterion of special protection for a 
worker which was justified by a supposed oversight in the 
Convention. However, this particular case was incorpo­
rated in the actual text of the Convention when it was 
revised in 1989. 
14 — See the judgment in Joined Cases 28/62 to 30/62 Da Costa 
en Schaake and Others [1963] ECR 31, particularly p. 38. 
15 —The Court has acknowledged the general scope of this 
principle in many judgments. See, for example, the 
judgment in Case C-26/91 Handle [1992] ECR I-3967, 
paragraph 14. 
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GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
First, the word 'obligation' and the phrase 
'in matters relating to a contract' must be 
construed independently, 16 that is to say, 
independently of the terms used by the 
national legal systems. Secondly, the 
national court must assess the obligation 
on which the claim is based and establish 
the law applying to that obligation in order, 
finally, to determine the place of perfor­
mance designated by virtue of that law. If it 
is the same as the place designated by the 
court's own law, the court will have 
jurisdiction, otherwise it will not. 
28. In theory, the Tessili principles appear 
technically flawless. In an ideal world, 
where legal rules are unambiguous and 
courts omniscient, the Tessili principles 
permit foreseeable, uniform answers which 
comply with the letter — and perhaps even 
the spirit — of the Convention. In practice, 
however, there is more than one disagree­
able surprise in store. Tessili requires a 
court to carry out three rather painstaking 
tasks from the legal viewpoint. First, it 
must, taking account of the information in 
its possession, classify or characterise the 
contractual obligation in question. For this 
purpose, the court will establish whether 
the legal relationship is contractual and will 
classify the relationship creating an obliga­
tion in the generally accepted categories 
(contracts of sale or carriage, leases and 
loan agreements, etc.). Although this first 
task is perhaps the simplest, it is not always 
straightforward. For example, what is the 
nature of the relationship between an 
association and its members? Or again, 
what are the limits of a right to damages in 
contract as compared with a claim in tort? 
In any case, the court will have to examine 
initially in more detail the conditions of the 
claim. 
29. Secondly, the court will have to ascer­
tain whether the legal relationship in ques­
tion is subject to uniform international 
rules, a task which the constant prolifera­
tion of international agreements sometimes 
makes more difficult, rather than easier. If 
there are no uniform international rules, 
the court must apply its own rules of 
private international law to discover which 
law is applicable or, as the case may be, the 
Rome Convention of 19 June 1980 on the 
Law Applicable to Contractual Obliga­
tions, since the date when it came into 
force. This work may necessitate even more 
detailed study of aspects going to the 
substance of the case. Every legal practi­
tioner knows the difficulties involved in 
referring to the rules of conflict of a given 
legal system, the magnitude of the difficul­
ties being equalled only by the fascination 
with which they are studied by university 
professors. 
30. Thirdly, once the applicable law has 
been identified, the court must determine, 
by reference to that law, the place of 
performance of the obligation in question. 
If no uniform rules in this connection are 
found, the court will have to seek them in 
its own law or in a foreign system. The 
difficulties arising in the latter case, which 
depend on the venue and on the applicable 
law in question, may be practically insur­
mountable. In any case, determining the 
place of performance of a particular type of 
obligation comes up against the general 
antipathy of most legal systems to theore­
tical definitions. With the possible excep-
16 — See also the judgments in Case 34/82 Peters [1983] ECR 
987, paragraphs 9 and 10; Case 9/87 Arcado [1988] ECR 
1539, paragraphs 10 and 11, and the Handle case, cited 
above, paragraph 10. 
I -6317 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
tion of obligations for the payment of a 
sum of money, national legal systems are 
usually content with a general reference to 
the will, express or implied, of the parties. 
This situation will compel the court to 
study the substance of the case in even 
greater depth. 17 
31. At best, all this effort will have served 
to confirm the jurisdiction of the court 
before which the matter has been brought 
or, at worst, to rule out the application of 
Article 5 or to confer jurisdiction upon the 
courts of another Member State which, if a 
new case is brought before them, will 
nevertheless have to go through the same 
procedure to verify their jurisdiction. 
32. I now propose to apply to the present 
case the steps which I have just described. 
VII — Application of the Tessili judgment 
to the present case 
33. The plaintiffs in the main proceedings 
are insurance companies. They insured the 
carriage by sea of certain goods between 
the ports of Le Havre in France and Santos 
in Brazil. On arrival at the port of destina­
tion, it was found that, some of the goods 
were damaged or missing and the insurance 
companies therefore indemnified the con­
signee. Having been subrogated to the 
latter's remedies and rights, the insurers 
had recourse to those responsible for carry­
ing the goods (the master of the vessel, the 
shipping company which owns it, the 
carrier and the insurance company covering 
the civil liability of the vessel) by bringing 
before a court of first instance in Le Havre 
the action which has led to this reference to 
the Court of Justice. 
34. Confronted with the question of its 
own jurisdiction, the court of Le Havre 
ought, according to the Tessili judgment, to 
have established, by means of autonomous 
interpretation, whether the matter before it 
related to a contract. It would appear that 
this question need not have detained the 
court for long. The action undoubtedly 
originates, at least indirectly, from a con­
tract for the carriage of goods. In actual 
fact, this is true only with regard to the 
action against the carrier. So far as the 
other defendants are concerned, the basis of 
the action for indemnity probably lies in 
tort. In the latter case, 18 and in accordance 
with the case-law of the Court of Justice, 
the court of Le Havre ought to have 
refrained from applying Article 5, point 
(1), of the Convention in relation to the 
other defendants as the obligations in 
17 — In flagrant contradiction to the purposes and spirit of the 
Convention, which 'requires an interpretation of Article 5 
enabling the national court to rule on its own jurisdiction 
without being compelled to consider the substance of the 
case' (see the judgment in Custom Made, cited above, 
paragraph 20). 
18 — A point which the Cour de Cassation took into account in 
finding that the French courts had no jurisdiction in 
relation at least to the master of the vessel (see paragraph 9 
above). 
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GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
question were not a 'matter relating to a 
contract'. 19 
35. After establishing that the action is 
contractual, the court of Le Havre should 
have ascertained the specific obligation on 
which the action was based, at least in 
relation to one of the defendants. As, 
according to the Court, 'in a case where 
the plaintiff asserts the right to be paid 
damages... the obligation referred to in 
Article 5, point (1), is still that which arises 
under the contract and the non-perfor­
mance of which is relied upon to support 
such claims', 20 it is clear that the obligation 
which the national court ought to have 
considered decisive is the obligation to 
transport the goods delivered to the port 
of destination without damage. 
36. Next, the court ought to have deter­
mined the law applicable. For this purpose, 
still according to the Tessili judgment, the 
court ought to have used its own rules of 
conflict. There are many different points of 
connection in the rules of conflict with 
regard to contracts. Let us imagine, for the 
sake of argument, that the possibilities 
which could have been considered were, 
in sequence, the law chosen by the parties, 
the national law common to the parties, the 
law of the place where the contract was 
concluded and, finally, the law of the place 
of performance. As there is no indication of 
the law chosen by the parties, who in any 
case do not appear to have the same 
nationality, and as there may be serious 
doubt as to the place where the contract 
was concluded — in so far as it is between 
a carrier and a consignee of goods to whom 
the bill of lading was to be delivered — the 
court will probably have to determine the 
law applicable to the contract by reference 
to... the place of its performance! 
37. Now let us imagine that the court 
before which the matter is brought reaches 
the conclusion, by reference to the express 
or implied will of the parties or by applying 
an imperative or dispositive rule in the 
course of its conflictualist examination, 21 
that the law applicable is that of Brazil. The 
court will then have to determine the place 
designated by Brazilian law as the place of 
performance of the obligation of carriage 
by sea. As it is unlikely that a French court 
of first instance will have sufficient knowl­
edge of Brazilian law or adequate means of 
understanding it, the court will probably 
abandon such a complicated method and 
will apply a different solution which would 
take account, if possible, of the particular 
circumstances of the case. 
38. If, perhaps, the French court has suffi­
cient knowledge of Brazilian law, it will 
probably find that the law of that country, 
like every other legal system, prefers to 
refrain from theoretical definitions in mat­
ters of contract, leaving it to the parties to 
define the terms of the contract. If the 
information available to the court leads it 
19 — See the judgment in Case C-51/97 Reunion Européenne 
and Others [1998] ECR I-6511, paragraph 20. 
20 — See the De Bloos judgment, cited above, paragraph 14. 
21 — Such as a national rule fixing the place of performance of 
an obligation for carriage by sea at the port of loading. 
I -6319 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
to conclude that the parties' intention was 
to agree that the place of performance was 
to be the destination port of the goods, the 
court must find that the port of Santos was 
designated. 
39. As a place situated in Brazil is desig­
nated as the place of performance of the 
contractual obligation, the French court 
has no choice but to decline jurisdiction 
and to refrain from taking further cogni­
sance of the action as regards the applica­
tion of Article 5, point (1), of the Conven­
tion. The difficulty arises from the fact that 
the first paragraph of Article 5 provides, in 
so far as we are concerned, that 'a person 
domiciled in a Contracting State may, in 
another Contracting State, be sued...'. 
When a court finds that an action before 
it is based on an obligation which has been 
or must be fulfilled 'outside the territory of 
the Contracting States, it has no choice but 
to conclude that the place provided for in 
Article 5, point (1), of the Convention 
cannot serve as a basis for attributing 
jurisdiction to a court within that territory 
and that Article 5, point (1), cannot there­
fore be applicable'. 22 
40. Just for the sake of illustration, if the 
case had been brought in Spain, the court 
would have applied the law to which the 
parties to the legal transaction had 
expressly submitted, provided that it had 
a connection with the transaction in ques­
tion; failing an express choice, the national 
law common to the parties; failing that, the 
law of the common habitual residence and, 
finally, the law of the place where the 
contract was concluded. 23 The particulars 
in the order for reference do not show 
which law would have been applied but, in 
all probability, to determine the law in 
question it would have been necessary to 
define terms such as 'habitual residence' in 
relation to companies and their establish­
ments, or 'place of conclusion of the 
contract' in relation to 'contracts concluded 
at a distance'. 
41. However, from the information avail­
able I think I may conclude that the French 
court ought to have referred to the Rome 
Convention of 19 June 1980 on the Law 
Applicable to Contractual Obligations in 
order to determine the lex causae. So far as 
the French Republic is concerned, the 
Convention came into force on 1 April 
1991, while the action was brought before 
the court of Le Havre on 22 September 
1991 (see paragraph 6 above). Therefore 
the solution would have been somewhat 
simpler and, of course, uniform throughout 
the Contracting States. However, it could 
not in itself have eliminated the risk of 
diverging interpretations. The reason is that 
Article 4(1) of the Convention provides 
that, where the applicable law has not been 
chosen by the parties, the contract is to be 
governed by the law of the country with 
which it is most closely connected. With 
regard to the present case, Article 4(4) 
provides that 'if the country in which, at 
22 — See the judgment in Case 32/88 Six Constructions [1989] 
ECR 341, paragraph 20. 
23 — Article 10, point 5, paragraph 1, of the Spanish Civil 
Code. It is clearly difficult to specify the place of 
conclusion of the contract where the offer and the 
acceptance are made in two different places. In Spanish 
law, under the last indent of Article 1262 of the Civil 
Code, this difficulty is resolved by the presumption that the 
contract was concluded at the place where the offer was 
made. This means that, in the present case, assuming that 
the offer is deemed to have been made at the carrier's 
registered office, German law could apply. 
I - 6320 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
the time the contract is concluded, the 
carrier has his principal place of business is 
also the country in which the place of 
loading or the place of discharge or the 
principal place of business of the consignor 
is situated, it shall be presumed that the 
contract is most closely connected with that 
country'. This does not appear to be the 
case, so that the only criterion for choosing 
the applicable law is simply 'most closely 
connected' of Article 4(1). 
42. If the contract was concluded in France 
and the damage was attributable to a 
mistake in loading or stowing, it could be 
argued that the contractual obligation was 
most closely connected with France and 
therefore French law is applicable. If, on 
the other hand, we consider that, from the 
viewpoint of the obligation in question, the 
actual work of unloading or the State 
where the goods were located is of greater 
importance, Brazil will be the designated 
country and Brazilian law will apply. With 
regard to characteristic obligations, refer­
ence to the lex causae merely displaces the 
moment of uncertainty, and with it the 
subsequent risk of fragmenting jurisdiction, 
to a later stage of reasoning, without 
eliminating uncertainty altogether. 
43. However, once the proper law of the 
contract has been identified, the difficulties 
of determining the place of performance 
according to that law remain, and also the 
problems arising from the unsuitability of 
reference to the lex causae for resolving 
questions of jurisdiction. I shall revert to 
this point later. 
VIII — The criticism of the Tessili judg­
ment 
44. The criticism of the case-law laid down 
in Tessili and Custom Made has concen­
trated essentially on two aspects: the prac­
tical difficulty of applying that case-law 
and the undesirable consequences of seek­
ing the applicable substantive law in order 
to determine a question of jurisdiction. The 
fact that the courts of the plaintiff's dom­
icile are more and more often imposed as a 
general forum for matters relating to con­
tracts must be mentioned as one of these 
undesirable effects. 
(a) The difficulties of applying the Tessili 
case-law 
45. As I have said, the Tessili case-law 
imposes a three-fold task on the court 
before which the matter is brought: inde­
pendently classifying the obligation on 
which the claim is based; determining the 
law applicable to that obligation in accor­
dance with the court's own rules of con­
flict; and ascertaining the place of perfor­
mance of the obligation in accordance with 
that law. 
46. I think I have shown sufficiently, using 
the present case as an example, that the 
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OPINION OF MR RUIZ-JARABO — CASE C-440/97 
Tessili method is extremely laborious, par­
ticularly when considered in relation to its 
only purpose, which is to determine whe­
ther the court before which the matter is 
brought has jurisdiction. 24 This complexity 
has not only led to much criticism from 
commentators but also — and this is more 
serious — caused considerable disaffection 
on the part of the national courts. In a 
word, Tessili is not followed. 25 And in 
cases where it is actually followed, this is 
often because the law applicable to the 
obligation in question is the law of the 
place in which the case is heard, 26 namely, 
the law which the court knows best or, as 
the case may, uniform international law. 
47. I should add that, in my view, the 
correct application of the Tessili judgment 
requires the court not only to go through 
the stages of reasoning described above in 
its internal legal system, but also to explain 
them and state grounds. A court which, in 
its decision, merely indicates a place of 
performance of the obligation in question 
for the purpose of Article 5, point (1), 
which is the same as that to which correct 
application of the Tessili judgment would 
have led has not applied that case-law. 
48. Where a court does not apply the ' 
conflictualist method, it usually proceeds 
on the basis of the circumstances of the 
particular case to determine the place of 
performance. 27 Finally, there have been 
cases of open 'rebellion' against the Tessili 
judgment, among which must be men­
tioned, because of its special features, that 
of the Cour de Cassation, the court which 
has referred the present question. 28 
49. However, perhaps the most discoura­
ging aspect of the painstaking exercise 
required of the national court is that, in 
practice, the result it will obtain will be 
either the defendant's domicile, in which 
case it would have been sufficient to apply 
the general forum provided for by Article 2 
of the Convention, or the plaintiff's dom­
icile, which contradicts not only most 
European procedural traditions, but also 
the system of the Brussels Convention itself, 
while there is still no guarantee that either 
of those places is most closely connected 
24 — If, having completed its examination, the court finds that it 
has jurisdiction, it may stili set aside the conclusions it 
- reached for the purpose of jurisdiction when it comes to 
consider the substance of the case because 'the interpreta­
tion of the said words and concepts [of civil, commercial 
and procedural law] for the purpose of the Convention 
does not prejudge the question of the substantive rule 
applicable to the particular case' (Tessili, cited above in 
footnote 3, paragraph 11). On the other hand, as I have 
already said, if it declines jurisdiction, its reasoning will be 
of no use to the next court before which the matter is 
brought. 
25 — On the resistance to applying it, see G. Droz, 'Delendum 
est forum contractus ? (vingt ans après les arrêts De Bloos 
et Tessili interprétant l'article 5, point 1, de la convention 
de Bruxelles du 27 septembre 1968)', Recueil Dalloz, 
1997, p. 351 . 
26 — See, for example, the judgment of the French Cour de 
Cassation (First Civil Chamber) of 6 February 1996, San 
Cario Gruppo Alimentare SPA v SBC Vito, cited in Revue 
Critique de Droit International Privé, 1996, p. 504. 
27 — See H. Gaudemet-Tallon, Les Conventions de Bruxelles et 
de Lugano, No 173, p. 129. 
28 — Whereas the Civil Chamber faithfully applied the Tessili 
method in a judgment of 25 February 1997 (Société Bateg 
Delta v Société Ward Groupe and Others, Recueil Dalloz, 
1997, Jurisprudence, p. 562), a few days later, the same 
Chamber upheld an order for enforcement on the ground 
that the previous court had correctly determined the place 
of performance 'by reference to the nature of the relation­
ship creating the obligation and the circumstances of the 
case') (SA Comptoir Commercial d'Orient v Société 
Medtrafina, judgment of 11 March 1997, ibid.). Again a 
few days later, the Commercial Chamber of the same court 
set aside an appeal court judgment on the ground that it 
stated no legal basis because it did not indicate the 
applicable law (Ernesto Stoppant SPA v SARL Stoppant 
France, judgment of 18 March 1997, ibid.). I am per-
plexed and uneasy because of the legal uncertainty caused 
y these inconsistent decisions. 
I - 6322 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
with the case — the criterion which is the 
specific justification for Article 5, point (1), 
as we shall see. This occurs particularly in 
relation to obligations to pay a price. 
(b) Reference to the lex causae to resolve 
questions of jurisdiction is inappropriate 
50. The second main criticism of the 
Court's method of interpreting Article 5(1) 
deplores the fact that criteria which have 
their raison d'être in substantive law are 
transposed into the field of jurisdictional 
competence, in that elements specific to 
rules of conduct are transferred to the field 
of conceptual rules or rules which create 
rights, such as rules of competence. 29 Such 
transposition also destroys the theoretical 
purity which was supposed to be found in 
the Tessili method. 
51. Specifically, the criticism is in essence 
directed at the introduction of a general 
jurisdiction in contractual matters which 
coincides with the domicile of the plaintiff, 
or rather the seller. 
52. There can be no doubt that the most 
frequent type of contract in international 
commercial relations is the contract of sale. 
Furthermore, most disputes relate to the 
payment of the agreed price. As regards the 
place where payment is to be made, tradi­
tionally there have been two trends in 
Europe: the place of the debtor's domicile 
(Germany, Belgium, Spain, France) and 
that of the creditor's domicile (Denmark, 
Greece, Ireland, Italy, Netherlands, United 
Kingdom). The first option has been con­
tinuously eroded in favour of the second. 
Thus, Article 59(1), first sentence, of the 
1964 Uniform Law on the International 
Sale of Goods provided that the place of 
performance of the obligation to pay the 
selling price is the place where the seller is 
established or, in the absence of an esta­
blishment, the place of his customary 
residence. Article 57 of the United Nations 
Convention on Contracts for the Interna­
tional Sale of Goods, which came into force 
on 1 January 1988, is, if possible, in even 
more general terms with regard to the 
obligation to make payment at the seller's 
domicile. 
53. In the order for reference which gave 
rise to the Custom Made case, the Bundes-
29 — Kelsen observed that terms such as 'competence', 'power', 
'capacity' or 'attributability' refer to the same concept or, 
at least, to concepts which are very close to each other 
because in all four cases a legal rule authorises (ermächtigt) 
in a wide sense certain conduct and, in doing so, trans­
forms it into legally relevant conduct (H. Kelsen, Reine 
Rechtslehre, Vienna, 1960, p. 150 et seq.). Alf Ross (A. 
Ross, On Law and Justice, London, 1958, p. 52 et seq.) 
and Lars Lindahl (L. Lindahl, Position and Change. A 
Study in Law and Logic, Boston, 1977, p. 194 et seq.) 
describe rules of competence as conceptual rules or rules 
which create rights, as opposed to rules of conduct. Rules 
of competence define a concept (e.g. 'legislature' or 'court') 
and make possible an activity (enacting legislation or 
giving judgments) which, if they were not covered by such 
rules, would not exist because they are not natural 
activities. The rules of competence determine which types 
of conduct are deemed to be legislative or judicial acts and 
who may carry out such acts, whereas rules of conduct 
govern the substance of those activities. 
The situation is similar with regard to powers conferred on 
individuals, although private law prefers the term 'capa­
city'. Rules of competence define what is meant by 
'contract', 'will' or 'promise' and make the activities in 
question legally relevant, whereas rules of conduct lay 
own the limits and describe the characteristics of such 
activities (see E. Bulygin, 'Sobre las normas de competen­
cia', Análisis lógico y derecho, Madrid, 1991, p. 485 et 
seq.). 
I - 6323 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
gerichtshof rightly questioned whether the 
place of performance should be determined 
according to the lex causae 'even in a 
matter governed by the Uniform Law on 
Sales, which would lead to generalising the 
forum actoris in actions for payment of the 
price of the goods'. 30 
54. When replying in the affirmative, the 
Court of Justice facilitated the research 
work of the national court which could, for 
that purpose, refer to a uniform interna­
tional law. At the same time, this increased 
the likelihood of a uniform reply. Unfortu­
nately, it also aggravated the pernicious 
tendency to use substantive-law criteria for 
resolving procedural problems, such as 
those relating to jurisdiction. 
55. Nevertheless, it must be said that, in 
principle, there is nothing pernicious in the 
fact — which, on the contrary, is perfectly 
logical — that, so far as contractual obli­
gations are concerned, the place of perfor­
mance should be the same as the domicile 
of one of the parties, even if it is that of the 
seller. In most contracts it is customary for 
the respective obligations to be performed 
at the domicile of one of the parties. What 
is not legitimate 31 is to distort the function 
of substantive law itself, which in this case 
consists in sharing out the contractual risks 
between the different parties, in order to 
establish competent courts conforming 
with those same criteria for sharing risks. 
This occurs where the increasingly general 
acceptance, in the international field, of the 
seller's domicile as the place of perfor­
mance of the payment obligation opens the 
door, by virtue of the Tessili and De Bloos 
case-law, to a vast forum actoris in relation 
to pecuniary obligations, having no con­
nection whatever with the place where the 
characteristic consideration of the contract 
was to be given. The defendant, who will 
generally claim that what he has received 
does not conform with what was agreed, 
will be obliged to put his case before a 
court perhaps a very long way from his 
domicile. For its part, the court before 
which the case is brought must find that it 
has jurisdiction even if it has to use long 
and costly letters rogatory to obtain essen­
tial evidence, that is to say, to verify the 
defendant's allegations of contractual non­
conformity. 
56. In his Opinion in the Custom Made 
case, Advocate General Lenz devoted the 
greater part of his criticism of the Court's 
case-law to this problem. After observing 
that, according to the intention of the 
draftsmen of the Convention, the concept 
of 'place of performance' was to enable a 
court closely connected with the facts to be 
designated, Mr Lenz observed that 'the 
rules of the lex causae relating to the place 
of performance may... embody elements 
which serve solely to apportion the risk... 
and do not provide reliable indications 
about the economic objective of the seller's 
obligations'. 32 It follows that this rule is 
not appropriate for designating a court 
closely connected with the facts of the case. 
30 — Order for reference of 26 March 1992 (paragraph V, 
point 3(d) in fine). 
31 — See G. Droz, op. cit., note 25, p. 355 in fine. 32 — [1994] ECR I-2933, paragraph 80. 
I - 6324 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
Consequently, for Mr Lenz, the main defect 
of the method consisting in determining the 
forum contractus by reference to the sub­
stantive law applicable by virtue of the 
rules of conflict is not so much an alleged 
general 'antipathy' to the jurisdiction of the 
defendant's domicile — which he does not 
find to exist — as the fact that this method 
is useless for attaining the specific objective 
of Article 5, point (1), namely the creation 
of a special forum in contractual matters 
with physical proximity to the facts. 
57. Although the criticism which I have 
just set out is entirely justified, it must be 
recognised that it arises from the De Bloos 
judgment and the isolation of bilateral 
obligations which it establishes, rather than 
from the Tessili method. As I indicated 
above, the controversy concerning the cor­
rect classification of the obligation for the 
purpose of Article 5(1) is outside the scope 
of these proceedings. Even though in the 
present case the plaintiffs in the main 
proceedings claim a sum of money, there 
is no doubt that they are acting by virtue of 
subrogation to the consignee of the goods 
and therefore they have brought an action 
based on the characteristic obligation of the 
contract, namely the obligation to carry the 
goods and to deliver them in good condi­
tion to the consignee. 33 
58. I should like to add, however, that 
determining the place of performance by 
reference to the lex causae contributes 
greatly to complicating the practical appli­
cation of the Tessili principles. As I said 
previously, the main concern of substantive 
law — in the matter of contractual obliga­
tions — is in general to share out the 
responsibilities or, in other words, the risk, 
between the contracting parties. It follows 
that civil or commercial legislation rarely 
lays down what is meant by the place of 
performance of an obligation, in the 
absence of express agreement between the 
parties. The law usually defines the 
moment at which the risk passes from one 
contracting party to the other. Normally 
that is the only indication offered by 
substantive law to the court to enable it 
to define what could be meant by 'place of 
performance'. 34 I doubt seriously whether 
it is legitimate to define the place of 
performance of an obligation by reference 
to the rules on sharing out contractual 
responsibilities. What happens if it is 
agreed that the goods are to be carried at 
33 — However, I cannot help thinking that it is somewhat 
artificial to allow, on the one hand, the isolation of 
bilateral obligations for the purpose of applying the forum 
contractus and, on the other, for the same purpose, to 
regard the obligation to compensate for damage as 
equivalent to an obligation which has not been performed 
or not performed correctly. See R Gothot and D. Hol-
leaux, Revue Critique de Droit International Privé, 1977, 
p. 769. 
34 — For example, if, in the main proceedings in this case, 
Spanish law were applicable, the court which has to give a 
decision on jurisdictional competence would only have, as 
regards carriage by sea recorded in a bill of lading, the 
provisions of the Law of 22 December 1949 (BOE 
No 358, 24 December). Article 5, point 3, of the Law, 
which incorporates the Brussels Convention of 25 August 
1924, provides that the carrier is to 'carry out suitably and 
carefully the loading, stowing, preservation, transport, 
supervision and discharge of the goods which he carries'. 
In Spanish law there do not appear to be any clearer 
indications of what must be regarded theoretically as the 
place of performance of the obligation for the international 
carriage of goods by sea under a bill of lading. However, in 
accordance with Article 24 of the same Law, and for the 
purpose of applying it, the court must first satisfy itself that 
the goods are carried only between nations which have 
ratified the 1924 Brussels Convention. If that is not the 
case, the court must refer to the rules on carriage by sea in 
the Commercial Code, the provisions of which throw even 
less light, if that were possible, on the existence of a place 
of performance of an obligation such as that in question 
here. If the court finds that there are no mandatory rules 
on the subject, it will have to fall back on the general 
principle of the autonomy of intention in matters of 
contract, as laid down in Article 1255 of the Civil Code, in 
order to conclude that the place of performance of the 
obligation is none other than that designated by the 
parties. If this is read in conjunction with the provisions on 
the sharing of the risks, it appears that the place in 
question is the same as the destination of the goods. All in 
all, we are not very much wiser! 
I - 6325 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
the consignee's risk? Does this mean that, 
by shifting to the port of loading the 
moment of the passing of the risk, the 
place where the obligation is to be per­
formed is also moved? Or, where the law 
provides that, in certain circumstances, the 
carrier is not liable for damage arising from 
the fact that the vessel is not seaworthy, 35 
does this mean that, for the purpose of an 
action for breach of contract, a carrier who 
pleads the statutory defence may claim that 
the place where he put goods on board the 
defective ship should be regarded as the 
place of performance of his obligation, on 
the ground that that is where his responsi­
bility ceased in the case in question? 
The rules on the sharing of commercial 
risks are of no use at all for designating the 
competent court. 
IX — The objectives of Article 5, point (1), 
of the Convention 
59. Any attempt to interpret Article 5, 
point (1), of the Brussels Convention must 
begin by determining the purpose of what 
is called the forum contractus. What is the 
purpose of Article 5, point (1), in the 
framework of the Brussels Convention? 
Why is it capable of creating a special 
jurisdiction at the place of performance of a 
contractual obligation and not, for exam­
ple, at the place where the contract was 
concluded? 
(a) The general objectives of the Brussels 
Convention 
60. Article 5, point (1), forms part of the 
Convention which was adopted by the 
Member States on the basis of Article 220 
of the EC Treaty, which provides that 'the 
Member States shall, so far as is necessary, 
enter into negotiations with each other 
with a view to securing for the benefit of 
their nationals... the simplification of form­
alities governing the reciprocal recognition 
and enforcement of judgments of courts or 
tribunals and of arbitration awards'. The 
scope of the Brussels Convention is clearly 
much wider than the specific objective laid 
down by Article 220. However, I wish to 
emphasise the aim of 'simplification' which 
it mentions. 
The preamble to the Convention states that 
the 'simplification of formalities' referred 35 — Article 8(1) of the Spanish Law of 22 December 1949. 
I - 6326 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
to by Article 220 36 and the 'legal protec­
tion' of persons established in the European 
Community 37 are among the objectives of 
the Convention. 
61. The corollary of the second objective of 
'legal certainty' 38 which imbues the whole 
of the Convention is to provide parties to 
actions with foreseeable decisions. 
62. In the Mulox judgment, the Court 
described the objectives of uniform appli­
cation of the Convention, which include 
'unification of the rules on jurisdiction of 
the courts of the Contracting States, so as 
to avoid... the multiplication of the bases of 
jurisdiction in relation to one and the same 
legal relationship and to reinforce the legal 
protection available to persons established 
in the Community, by, at the same time, 
allowing the plaintiff easily to identify the 
court before which he may bring an action 
and the defendant reasonably to foresee the 
court before which he may be sued'. 39 
(b) The specific objectives of Article 5, 
point (1), of the Convention 
63. The main aims of the Brussels Conven­
tion as a whole are reflected most clearly in 
what is conventionally called its general 
forum, that is to say, the defendant's 
domicile. That forum meets, appropriately 
and at one and the same time, the aims of 
uniformity, foreseeability, avoiding a multi­
plicity of jurisdictions, ease of designation 
and legal protection. However, the Con­
vention provides for a limited number of 
special jurisdictions, the justification for 
which varies from case to case. Thus, in 
proceedings concerning immovable prop­
erty, Article 16 provides that the courts of 
the State in which the property is situated 
are to have exclusive jurisdiction by reason 
of the advantages for the administration of 
justice arising from the proximity of those 
courts to the subject-matter of the dis­
pute. 40 Similarly, with regard to insurance, 
the insured may choose to bring an action 
before the court of his domicile in order to 
have greater legal protection. Conse­
quently, there is no doubt that the adoption 
of a special, optional forum in contractual 
matters must also have an equally specific 
justification. 
64. Article 5, point (1), is generally said to 
have two main objectives: the proximity of 
the court with jurisdiction to the subject-
36 — The object of which, as interpreted by the Court, is to 
'eliminate obstacles to legal relations and to settle disputes 
within the sphere of intra-Community relations' (Tessili 
judgment, cited above, paragraph 9). 
37 — An important component of which is 'to ensure uniformity 
in all the Member States' (Case 189/87 Kalfelis [1988] 
ECR 5565, paragraph 17). Indeed, 'the principle of legal 
certainty in the Community legal system and the objectives 
of the Brussels Convention in accordance with Article 220 
of the Treaty, which is its origin, require in all Member 
States a uniform application of the legal concepts and legal 
classifications developed by the Court in the context of the 
Convention' (Joined Cases 9/77 and 10/77 Bavaria and 
Cermanair [1977] ECR 1517, paragraph 4). 
38 — See the judgments in Case 38/81 Effer v Kantner [19821 
ECR 825, paragraph 6, and in the Handle case, cited 
above, paragraph 11. 
39 — Case C-125/92 Mulox IBC [1993] ECR I-4075, paragraph 
11. In paragraph 45 of his Opinion in the Custom Made 
case, Advocate General Lenz lists those objectives with 
reference to their sources in the Convention and in the 
Court's case-law ([1994] ECR I-2925). 
40 — See P. Jenard, Official Report on the Original Version of 
the Brussels Convention (OJ 1979 C 59, p. 122 et seq., 
'the Jenard Report'). 
I - 6327 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
matter of the dispute and procedural bal­
ance between the parties. 
65. The justification of proximity to the 
subject-matter has been recognised since 
the Jenard Report. 41 In principle, there is 
no doubt that the fact that the court is close 
to the place where the obligation in ques­
tion was to be performed appears likely, in 
most cases, to facilitate the administration 
of evidence. That is usually the place where 
the goods are located or where the obliga­
tion is to be fulfilled. It is also the place 
where witnesses can most easily be reached 
and where expert reports can be obtained 
at less cost, by avoiding slow and costly 
letters rogatory. In fact, however, this is 
true only with regard to the place where the 
characteristic obligation of the contract is 
to be fulfilled. That is why I said previously 
that I am in favour of rectifying the De 
Bloos case-law so that a merely pecuniary 
obligation, that is to say, one not charac­
teristic of the contract, would no longer be 
taken into account for the purpose of 
Article 5, point (1). Even if the plaintiff 
claims that the agreed price has not been 
paid, the place of performance of the 
obligation in kind serves best to designate 
a court with proximity to the dispute 
because, firstly, the defendant generally 
pleads in his defence that the plaintiff has 
not fulfilled or has only party fulfilled his 
obligation and, secondly, proof of payment 
is normally in documentary form: that is 
why it is to a greater extent independent of 
a specific place in proximity to which a 
basis of jurisdiction should be established. 
In any case, I repeat that these considera­
tions, although important, have no direct 
bearing on the outcome of the main 
proceedings, which concern, as we know, 
the performance of the characteristic obli­
gation of the contract. 
66. The Court has accepted this justifica­
tion in its case-law on more than one 
occasion. 42 
67. Personally, I think it is more correct to 
speak of 'connection with the contract' 
rather than 'proximity to the subject-mat­
ter', in so far as the links between the 
competent court and the contract may be 
based on mere declarations of intention 
rather than facts proper. This usually 
applies in the case of total non-performance 
of the obligation due. In that case, the place 
where the obligation was to be performed 
can be determined only on the basis of 
hypothetical factors. 
From this viewpoint, the criterion of con­
nection derives further legitimacy, apart 
41 —Jenard Report, cited above, p. 153. 
42 — The Court has recognised that 'a particularly close 
relationship between a dispute and the court which may 
be most conveniently called upon to take cognisance of the 
matter' is desirable (Tessili judgment, cited above, para­
graph 13). 
I - 6328 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
from considerations of the proper adminis­
tration of justice, from the general principle 
of the autonomy of the contracting parties' 
intention. 
68. Certain commentators add that the 
creation of the forum solutionis enables 
the advantages and risks connected with 
determining the competent court to be 
shared fairly between the plaintiff and the 
defendant. 43 In this way, Article 5, point 
(1), is said to act as a counterweight to the 
general rule of the forum of the defendant's 
domicile. 
69. Some of these writers use this supposed 
purpose of the abovementioned provision 
to support a broad interpretation of it. 44 
They contend that Article 5 of the Con­
vention, read in conjunction with Article 2, 
is based on the idea that, in certain 
particular cases, the plaintiff's interest must 
take precedence over the protection of the 
defendant and therefore that he should be 
given an option with regard to jurisdiction. 
To be effective, this right of option must 
not be construed restrictively, otherwise 
Article 5, point (1), and Article 2 could be 
fused into one and the same provision, the 
former being left with no effect at all. 45 
70. Personally, I think that this last argu­
ment, although original, has insufficient 
support in the legal traditions of the 
Member States to be regarded as authentic. 
Furthermore, I do not think this justifica­
tion is necessary or useful. It is true that in 
practice Article 5, point (1), by conferring 
jurisdiction in many cases on the courts of 
the plaintiff's domicile, may to some extent 
counterbalance the general forum. How­
ever, this is due more to the simple fact that, 
generally, obligations have to be performed 
where at least one of the parties resides, 
rather than to a supposed intention to 
achieve a balance between the parties to a 
contract so far as jurisdiction is concerned. 
(c) First provisional conclusion 
71. At this stage of the discussion, I think it 
useful to set out a first provisional conclu­
sion regarding the general and particular 
objectives which, in my opinion, are pur­
sued by the establishment of the forum 
contractus in the framework of the Brussels 
Convention. 
It follows from what has been said that the 
proper interpretation of Article 5, point 
(1), must lead to designating as the compe­
tent court that which is situated at a place 
having a close connection with the con­
tractual obligation in question, a place 
43 — Sec F Schack, Der Erfüllungsort im deutschen, auslän­
dischen und internationalen Privat- und Zivilprozeßrecht, 
Frankfun, 1985, paragraphs 144 et seq., 207 and 218. 
44 — See A. Huet, 'La ubicación del artículo 5 en el sistema del 
Convenio. La competencia en materia contractual', in 
Competencia judicial y ejecución de sentencias en Europa, 
Madrid, 1993, pp. 75 and 76. 
45 — Statistics compiled by Mr. G. Droz show that, of the 48 
cases determined in relation to Article 5, point (1), 24 were 
found to fall within the jurisdiction of the court for the 
defendant's domicile. In other words, in half of the cases 
the general forum of Article 2 of the Convention was 
chosen (statistics published in Revue Critique de Droit 
International Privé, 1987, pp. 802 and 803). 
I - 6329 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
which is determined by reference to the 
general requirements of foreseeability, of 
avoiding a multiplicity of jurisdictions, of 
uniform criteria and of ease of designation. 
X — The possible methods of interpreta­
tion 
72. As I have already said, the first judg­
ment given by the Court under the Protocol 
of 3 June 1971 related precisely to Arti­
cle 5, point (1), of the Brussels Convention. 
The issue then was to determine the place 
of performance of the seller's obligation to 
deliver goods in conformity with the con­
tract. The defendant company in the main 
proceedings, Dunlop AG, even then set out 
in its written observations the two main 
possibilities open to the Court: on the one 
hand, a uniform interpretation based on 
elements of comparative law and, on the 
other, a conflictualist interpretation depen­
dent on the substantive law applicable in 
each case. With regard to the latter possi­
bility, counsel for Dunlop even then 
pointed out the danger in treating the place 
of performance of the obligation as that of 
the seller's domicile and finally proposed as 
the place of performance the place where 
the obligation was actually to be carried 
out, namely the place indicated by the 
circumstances of the case, by reference to 
the relationship creating the obligation in 
question. 46 
73. More than 20 years have elapsed and, 
although Article 5, point (1), has been the 
subject of more judicial controversy and 
has been given more attention by commen­
tators than any other provision of the 
Brussels Convention, the possible solutions 
are in substance still the same, namely: 
(a) uniform interpretation in the frame­
work of the Convention, which is in 
itself independent of the interpretations 
prevailing in the Member States, even if 
it is based on them, and which is now 
commonly called 'autonomous inter­
pretation'; 
(b) the conflictualist method, generally 
used by the Court, which consists in 
determining the place of performance 
of the obligation by reference to the 
substantive law applicable to the parti­
cular case according to the rules of 
conflict of the court before which the 
matter is brought; 
(c) the designation of the place of perfor­
mance by reference to the particular 
circumstances of the case and the 
nature of the relationship creating the 
obligation in question; this is the 
solution which the Cour de Cassation 
appears to suggest. 47 
46 — As regards the obligation to guarantee goods against 
hidden defects, Dunlop argued that the place of perfor­
mance should be that where the defective goods are located 
because that is where any defects may be examined easily 
and, if necessary, the goods can be repaired ([1976] ECR 
1477). 
47 — I am clearly discarding any interpretation of 'place of 
performance' which is necessarily based on the substantive 
lex fori, because it would inevitably give rise to the 
dispersion of jurisdictions. 
I - 6330 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
74. These three categories, as described 
above, must be understood as means of 
analysis rather than true, completely 
defined scientific options. The third variant 
is really only a sub-category of the first. 
This makes it necessary first of all to choose 
between, on the one hand, recourse to the 
lex causae and, on the other, autonomous 
interpretation. When this choice has been 
made, it is necessary to find the criterion of 
interpretation which best satisfies the gen­
eral and particular requirements of the 
forum executionis, which I have listed 
above. In other words, I think it prudent 
to distinguish between methods and criteria 
of interpretation and to examine them one 
after the other. 
(a) Autonomous interpretation 
75. 'An autonomous interpretation of the 
terms used in the Convention is preferable 
in principle because it helps to secure the 
uniform application of the Convention and 
thus contributes to the realisation of its 
underlying purpose, which is to unify the 
jurisdiction rules of the Contracting States. 
Such unification is inevitably impeded if the 
meaning of the terms used in the Conven­
tion varies according to the applicable law.' 
I fully concur with the views of Advocate 
General Jacobs expressed in the Mulox 
case. 48 
76. Autonomous interpretation fulfils one 
of the fundamental purposes of the Brussels 
Convention: to attain a high degree of 
uniformity within Europe with regard to 
the treatment of questions of international 
jurisdiction. 
77. Autonomous interpretation also facil­
itates to a large extent the application of 
the Convention by avoiding constant 
recourse to the law applicable to the legal 
relationship in question. As I have already 
stressed with regard to the locus solutionis, 
the need to construe the terms used in the 
Convention by recourse to the lex causae 
means that the mere designation of the 
competent court raises difficulties associ­
ated with the substance of the case, which 
are aggravated by the special features of the 
technique of conflict of laws (classification, 
preliminary question, public policy and 
other concepts). 
78. It is not surprising that the Court has 
preferred autonomous interpretation in 
almost all cases. Thus, it has interpreted 
independently not only the phrase 'matters 
relating to a contract',49 but also, among 
others, 'civil and commercial matters',50 
'matters relating to tort, delict or quasi-
delict'51 and 'maintenance creditor'.52 It 
seems to have abandoned this method only 
in very rare cases, namely those in which 
the Convention itself calls for recourse to 
national law (for example, in relation to the 
term 'domicile') and, precisely, Article 5, 
point (1), but even with regard to the latter, 
48 — Mulox IBC judgment, cited above. Opinion published in 
[19931 ECR I-4091. 
49 — See paragraph 27 of this Opinion. 
50 — Case 29/76 LTU v Eurocontrol [1976] ECR 1541. 
51 — Kalfelis judgment, cited above. 
52 — Judgment in Case C-295/95 Farrell [1997] I-1683. 
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OPINION OF MR RUIZ-JARABO — CASE C-440/97 
only in relation to the definition of 'place of 
performance'. 53 
79. Autonomous interpretation therefore 
meets the aims of uniform criteria and ease 
of designation. In the following paragraphs 
I wish to make the point that, in relation to 
the other aims of the Convention, the 
technique of the Tessili judgment offers 
no advantages. 
(b) The conflictualist method 
80. The supporters of the conflictualist 
method stress mainly the limitations inher­
ent in the autonomous interpretation of the 
terms of an international convention.54 
They also maintain that there is nothing 
to indicate that the jurisdiction of the court 
of the plaintiff's domicile is incompatible 
with the special forum of the place of 
performance of the obligation.55 More­
over, they consider that the possibility that 
the place determined by reference to the lex 
causae may have no connection with the 
subject-matter in question is a risk inherent 
in all cases of special jurisdiction. The 
assumption that the connection exists jus­
tifies the creation of the special forum of 
the place of performance of the obligation. 
Nevertheless, when applying this special 
jurisdiction rule, a court may be guided 
only by the formal criteria adopted by the 
Convention. 56 
81. The Court itself justifies its preference 
for recourse to the lex causae by invoking 
legal certainty and foreseeability. 57 
82. In my opinion, recourse to the lex 
causae provides at most only a certain 
degree of theoretical peace of mind. There 
is something attractive in the apparent 
mathematical logic of the Tessili method, 
in its theoretical formulation. In reality, the 
conflictualist solution offers no advantage 
whatsoever over autonomous interpreta­
tion, but it certainly has numerous disad­
vantages. 
83. In default of agreement between thi 
parties, 58 the term 'place of performance 
in Article 5, point (1), could be interpreted 
independently by treating it as the same a: 
53 p. Byrne, The EEC Convention on Jurisdiction and the 
Enforcement of judgments, Dublin, 1990, pp. 29 and 44. 
54 — The draftsmen of the Brussels Convention themselves seem 
to have been aware of these limitations because in 
Articles 6(4) and 22(2) they incorporated references to 
national law. In favour of the conflictualist method, see 
also H. Gaudemet-Tallon, Revue Critique de Droit Inter­
national Privé, 1994, p. 698 et seq., and H. Tagaras, 
'Chronique convention de Bruxelles', Cahiers de Droit 
Européen, 1995, p. 222. 
55 — At the time when the Brussels Convention was drawn up, 
pecuniary obligations had to be fulfilled at the creditor's 
domicile in several Member States and at the same time 
under an international agreement in force in part of the 
territory of the Community (Hague Convention of 1 July 
1964 and the annex thereto). 
56 — See H. Tagaras, op. cit., p. 255. 
57 — See the Custom Made judgment, cited above, paragraph 14 
et seq. 
58 — As contracts are governed by the general principle of the 
autonomy of the parties, I consider that, it there is 
agreement on the place of performance, it must operate 
for the application of Article 5(1 ). Any abuse to which this 
may lead must be treated in accordance with the provisions 
concerning fraudulent evasion of the law. 
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GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
'the place with which the contract is most 
closely connected'. This possibility is cate­
gorically rejected, in spite of its undeniable 
simplicity, because it would compel the 
court to examine the substance of the case 
in detail and, because of the uncertainty as 
to the result of the assessment of the facts 
which the court would have to make, 
would open the door to diverging judg­
ments and, ultimately, to the multiplication 
of bases of jurisdiction. On the other hand, 
according to the conflictualists, supported 
on this point by the Court's settled case -
law, recourse must be had to the lex causae. 
In other words, the court before which the 
matter is brought must first find the law 
applicable to the legal relationship in 
question. For this purpose it must, since it 
came into force, use the Rome Convention 
of 19 June 1980 on the Law Applicable to 
Contractual Obligations, Article 4(1) of 
which provides that 'to the extent that the 
law applicable has not been chosen... the 
contract shall be governed by the law of the 
country with which it is most closely 
connected'. This is followed by a number 
of provisions which require the court to 
examine the substance of the case in more 
and more detail (raising of presumptions 
and exceptions to them, nature and subject-
matter of the contract, determining the 
'characteristic obligation'). The conflictu-
alist method merely postpones to a later 
stage of the court's examination the inevi­
table assessment of the substance of the 
case. Moreover, I fail to see why the 
criterion of the closest connection provided 
for by the 1980 Rome Convention should 
permit solutions more uniform than those 
based on the criterion of the place of 
performance, which is itself also relatively 
indeterminate. 
84. The difference between the two meth­
ods is that, whereas a court which would 
prefer autonomous interpretation already 
has a reply, with the potential errors and 
omissions inevitable in law, which is not an 
exact science, a court which chooses the 
conflictualist approach must still determine 
the place of performance of the obligation 
in question, in accordance with the law 
which it finds applicable. If the lex fori, 
which the court knows best, is applicable, 
the task will be easier. If, on the other hand, 
foreign law, perhaps of some distant coun­
try, is applicable, 59 the exercise will 
become appreciably more complicated. If 
it is a question of the characteristic obliga­
tion of the contract, as in the present case, 
whichever law is consulted will probably 
reply that the place of performance is the 
place chosen by the parties and, in default 
of agreement on the point, it must be 
designated in the light of the circumstances 
of the relationship creating the obligation 
in question, that is to say, by means of an 
assessment of the facts. Consequently we 
find ourselves back where we started. 
To sum up, the method set out in the Tessili 
judgment guarantees no more legal cer­
tainty than an autonomous interpretation 
and it complicates unnecessarily the task of 
the court before which the matter is 
brought. 
85. In addition, there is no guarantee that 
the Tessili method will designate a court 
59 — Before the 1980 Rome Convention came into force, a 
Spanish court dealing with an action for breach of contract 
brought by a Nigerian national residing in the frontier 
town of Irun against a compatriot domiciled two streets 
further down, in Hendaye (France) had to determine, in 
accordance with the Tessili case-law and by virtue of 
Article 10(5) of the Spanish Civil Code, the place of 
performance of the obligation in question according to 
Nigerian law. 
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OPINION OF MR RUIZ-JARABO — CASE C-440/97 
closer to the facts or more closely con­
nected with the obligation in question than 
the court which would be designated by 
recourse to an autonomous interpretation. 
(c) Second provisional conclusion 
86. Accordingly, I arrive at the second 
provisional conclusion of my analysis. The 
autonomous method has undoubted advan­
tages by comparison with conflictualist 
interpretation, particularly with regard to 
the uniformity of criteria and the ease of 
designating the competent courts under 
Article 5, point (1). Regarding the aims of 
foreseeability, avoidance of a multiplicity of 
jurisdictions, and proximity or connection, 
the Tessili method merely succeeds in 
postponing recourse to a connecting ele­
ment which necessitates examination of the 
facts of the case. However, because of its 
technical complexity, the conflictualist 
method encourages mistakes when it is 
applied and even when it is not applied, 
with the legal uncertainty which that 
entails. 
XI — The criterion for interpretation pro­
posed by Advocate General Lenz 
87. Among the different criteria available 
for the purpose of autonomous interpreta­
tion, I think it would be helpful to study the 
proposal put forward by Mr Lenz in the 
Custom Made case. 
Mr Lenz began his original analysis by 
observing that a forum designated as hav­
ing jurisdiction on the basis of a concept of 
substantive law can be justified only on 
procedural grounds, namely a ground such 
as physical proximity to the relationship at 
issue. Therefore, according to Mr Lenz, it is 
necessary to distinguish clearly between the 
sharing of the economic risks, which is 
effected by substantive law, and the proce­
dural grounds which are the subject of 
Article 5. It is dangerous to confuse the two 
concepts: under the Uniform Law on the 
International Sale of Goods (and particu­
larly Article 59(1)), that is to say, the 
substantive law applicable by virtue of the 
Tessili judgment, the result would be to 
create, in the framework of Article 5, point 
(1), a true general jurisdiction of the 
defendant's domicile. 
I share the concern expressed by Mr Lenz, 
although I still consider that the practical 
difficulties of applying it and the inevitable 
risk of divergence and legal uncertainty 
which it involves are the main defect of the 
conflictualist method. 
88. Mr Lenz proposed that as, in disputes 
concerning the payment of the price — as 
opposed to those where the conclusion of 
the contract itself is disputed — the ques-
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GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
tion in most cases is whether the seller duly 
fulfilled his obligations, the competent 
court under Article 5, point (1), is that 
which is best able to assess whether that is 
so. 
89. As Mr Lenz himself admits, his propo­
sal differs only very slightly from the De 
Bloos judgment, in so far as 'contractual 
obligation' must be taken to mean only the 
obligation 'which is far the more likely to 
result in the determination of a court 
physically proximate to the relationship 
than the obligation at issue'. 60 According 
to Mr Lenz, the Tessili case-law would 
continue to apply, albeit not for the pur­
poses of determining the place of perfor­
mance of the obligation at issue, but the 
place of performance of the counter-obliga­
tion of the other party (paragraph 78). 
However, the Advocate General then 'qua­
lifies' that statement: 'As I used such 
elements when I examined the rules on 
the place of performance of the obligation 
to make payment as a reason for diverging 
from the substantive law of the contract, on 
the ground that those rules could not serve 
to determine a court which was physically 
proximate to the relationship at issue, it 
would seem illogical to use another method 
when considering the rules on the place of 
performance of the seller's obligation to 
deliver the goods'. And Mr Lenz concludes 
by proposing a completely independent 
interpretation of the place of performance 
in that case: '... in the case of disputes 
about the payment of the price arising on 
account of alleged defective performance of 
the counter-obligation... the courts for the 
place at which the goods were intended to 
be supplied is, as a general rule, nearer to 
the facts than the court for the place from 
which they were sent. This is true irrespec­
tive as to which of those two places is the 
"place of performance" under the substan­
tive law' (paragraph 80). And the Advocate 
General proposes that this same court be 
designated as the competent court for the 
purpose of Article 5, point (1), of the 
Convention. 
90. To sum up, the conclusion reached by 
Advocate General Lenz implies a certain 
rectification of the De Bloos judgment (by 
introducing the concept of the characteris­
tic obligation under a different name) and, 
in practice, the abandonment of the Tessili 
case-law in favour of an independent 
interpretation, according to which the 
forum contractus would be the place closest 
to the subject-matter. 
91 . Although I am in favour of the 
approach taken by my eminent colleague, 
I differ as to the minimum theoretical 
criterion for the independent interpretation 
preferred by Mr Lenz, that is to say, 
proximity to the subject-matter. Such 
proximity or, if you will, the connection 
with the contract, as objectives of the 
provision, are the foreseeable result of 
independent determination, and not the 
criterion for interpretation. 
92. Mr Lenz ends by proposing that the 
Court's reply should be that the place of 60 — [1994] ECR I-2933, paragraph 77. 
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OPINION OF MR RUIZ-JARABO — CASE C-440/97 
performance, within the meaning of Arti­
cle 5, point (1), of the Convention, of the 
obligations arising from a contract for 
manufacture and supply is the place at 
which the goods are intended to be sup­
plied. 61 
93. This point leads me to what is perhaps 
the main criticism (or the main apprehen­
sion) of independent interpretation in this 
sense, which consists in saying that it 
would compel the Court to determine, case 
by case, the place of performance of each of 
the innumerable types of contract. 62 
94. In my opinion, it is an illusion to think 
that it is possible to make an exhaustive list 
of every kind of contractual obligation, 
present and future, and to attribute theore­
tically a specific place of performance to 
each of them. Autonomy of intention does 
not lend itself to classification. Further­
more, without greater precision in the text 
of the Convention, this exercise would 
compel the national courts to request a 
preliminary ruling from the Court of Justice 
whenever they are confronted by a new 
type of obligation (the possibilities are 
endless), thus defeating the Convention's 
aim of simplification. Any criterion for 
interpretation must be simple and unam­
biguous. 
XII— The proposed solution: designation 
of the place of performance by reference to 
the particular circumstances of the case and 
the relationship creating the obligation in 
question 
(a) Should the case-law be changed? 
95. The difficulties created by the case-law 
laid down in the Tessili judgment suggest 
that the Court of Justice should take a new 
approach in its case-law. Although the 
interpretation proposed by the Tessili judg­
ment has prevailed for 20 years and 
although it was solemnly followed in the 
Custom Made judgment, it has not gained 
acceptance by the national courts, which 
follow it very unequally and, above all, 
very imperfectly. The fact is that the correct 
application of the Tessili technique is a 
matter of fiendish difficulty. 63 
96. The referring of a question by the 
French Cour de Cassation, which is famil­
iar with the position adopted by Commu­
nity case-law, must be understood as a 
desperate call for the aim of uniformity that 
the Court must pursue to be attained in the 
form of interpretive criteria, of more or less 
great scientific exactitude, but which meet 
61 — [1994] ECR I-2947, paragraph 1 of the conclusion. 
62 — This is nevertheless proposed by the governments of 
Germany and the United Kingdom. 
63 — It should be remembered that, when the representatives of 
the intervening governments were questioned at the 
hearing about the result to which application of the Tessili 
method would have led in their respective national systems 
of law, none of them was able to give a satisfactory 
answer — and they must be presumed to be experts in the 
matter. Consequently, how could the Tribunal de Com­
merce, which does not even consist of professional judges, 
be expected to give an answer? 
I - 6336 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
the requirements of and the resources 
available to a lower court in the Commu­
nity, without seriously affecting the other 
aims of the Convention. 
97. I think the time has come for the 
wisdom and prudence of the Court of 
Justice to prevail once again. There must 
be a change of case-law to interpret Arti­
cle 5, point (1), of the Brussels Convention 
in accordance with the requirements of 
social reality. 
98. The temptation to wait for the neces­
sary change to come from the negotiations 
concerning the amendment of the Brussels 
Convention now taking place within the 
Council should be resisted. 64 Firstly, 
because such conduct would be incompa­
tible with the characteristics of the judicial 
function: behind any particular case there 
are individual parties who, after years of 
litigation, are entitled to a reply in law, 
irrespective of the vicissitudes of some 
political negotiations. Secondly, because 
experience shows that the outcome of such 
negotiations is always uncertain, as is also 
the date by which a conclusion must be 
reached. Finally, since the question is one of 
procedural technique, no one is better 
placed than the national court to find a 
solution which most skilfully combines the 
interests of the proper administration of 
justice and sufficient protection for indivi­
duals. 
(b) The new criterion of interpretation 
99. The third method of interpretation 
which I mentioned above is, as I have said, 
a variant of the first or, rather, a concrete 
autonomous interpretation as opposed to 
what could be called a theoretical autono­
mous interpretation. Whereas in this last 
version there would be a theoretical defini­
tion of the place of performance of each of 
the characteristic contractual obligations, 
in the version which I now put forward the 
theoretical aspect would be confined to 
setting out a very simple criterion for 
interpretation, leaving the national court 
to apply it to the particular case. 
100. According to this proposal, 65 the 
court before which the matter is brought 
must determine 'the place of performance 
of the obligation' by reference to the 
particular circumstances of the case and 
taking account of the nature of the relation­
ship creating the obligation in question. 
101. I cannot deny that this approach 
obliges the court to assess the facts of the 
case, but any solution, as I explained 
64 — For a summary of the proposed amendments, see K. Hertz, 
jurisdiction in Contract and Tort under the Brussels 
Convention, Copenhagen, 1998, p. 159 et seq. 
65 — Which is in no way revolutionary because it is as old as the 
Brussels Convention itself. 
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OPINION OF MR RUIZ-JARABO — CASE C-440/97 
above, requires some examination of the 
factual aspects of the action. What is more, 
I consider that a certain assessment of the 
factual aspects is not only inevitable, but 
legitimate. The concept of 'place of perfor­
mance' of a contractual obligation has its 
raison d'être in factual criteria, 66 like the 
concept of 'the place where the harmful 
event occurred'. However, the Court has 
not had the slightest difficulty in giving an 
independent interpretation to the latter 
concept. 67 Obviously, when assessing these 
circumstances in relation to the nature of 
the obligation in question, different courts 
may arrive at different conclusions, but is 
the location of the 'harmful event' always 
unequivocal ? 
102. It is a characteristic of administration 
of human justice that, when certain factual 
conditions are attached to a rule, it may 
happen that different courts reach different 
conclusions. That, however, is inevitable 
and the legal system must tolerate it. What 
is more difficult to accept, from the view­
point of the proper administration of 
justice — which, after all, is the object of 
the whole Convention — is that, merely in 
order to ascertain whether the court before 
which the matter was brought has interna­
tional jurisdiction, four sets of legal pro­
ceedings and more than seven years' litiga­
tion have been necessary. 68 
103. Save with regard to obligations for the 
payment of a sum of money, reference to 
the circumstances of the case in relation to 
the nature of the obligation in question 
should enable the place or places of perfor­
mance of an obligation to be determined 
with sufficient reliability in most cases. 
I admit that this assertion does not apply to 
mere payment obligations. After all, it is 
easy to see that it is the existence of 
different rules in Europe regarding the 
place where such obligations must be 
fulfilled which has led to the use of the 
conflictualist method. It is all the fault of 
De Bloos! From the very beginning, the 
answer should have been to take account 
only of the characteristic obligation of the 
contract for the purpose of Article 5, point 
(1). Then it would have been possible, in 
the overwhelming majority of cases, to 
designate a place of performance for pro­
cedural purposes close to the essential 
elements of the contract. However, in order 
to avoid this reasonable construction of the 
text of the Convention, which would have 
been entirely appropriate to its aims, a 
66 — See E. Jayme, 'Ein Klägergerichtsstand für den Verkäu­
fer — Der EuGH verfehlt den Sinn des EuGVU', I Prax, 
1995, p. 13 et seq., in particular p. 14. 
67 — See F. Pocar, 'Las competencias especiales del artículo 5 del 
Convenio en materia delictual y en materia de explotación 
de un establecimiento secundario', Competencia judicial y 
ejecución de sentencias en Europa, op. cit., p. 119 et seq. 
68 — In breach of Article 6(1) of the European Convention on 
Human Rights, which provides that everyone is entitled to 
a hearing 'within a reasonable time'. 
I - 6338 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
method was introduced for obligations of 
all kinds which it is very difficult to apply. 
Therefore I consider that, for the purpose 
of the forum contractus, the court must 
presume that the place of performance of 
an obligation is the place where the obliga­
tion which characterises the legal relation­
ship in question was performed or was to 
be performed. 
104. The solution proposed by Mr Lenz in 
the Custom Made case took an autono­
mous approach. However, in my opinion, 
proximity to the subject-matter (to which I 
prefer the 'connection with the dispute', as 
I explained) cannot in itself be the criterion 
for determining the forum executionis, but 
the main justification for creating that 
special jurisdiction. The draftsmen of the 
Convention considered it appropriate to 
provide for the possibility of bringing an 
action before the court of the place of 
performance of the contractual obligation 
in question because, among other things, 
that forum would in practice be close to the 
subject-matter. If the intention had been 
that, in matters relating to a contract, the 
court closest to the subject-matter should 
always have jurisdiction, why not have said 
so? 69 
105. Although the connection with the 
dispute cannot be a criterion of interpreta­
tion in itself, for the national court it must 
offer correction or guidance if there is 
doubt, which could not otherwise be 
removed, as to the place of performance 
of the obligation. These situations arise 
more and more frequently in relation to 
certain obligations to deliver movable 
goods. However, I am sure that, in the 
overwhelming majority of disputes, an 
examination of the circumstances of the 
case in relation to the nature of the 
obligation in question is sufficient to des­
ignate a place of performance which corre­
sponds, with reasonable reliability, to the 
aims of the Convention. 70 
106. Consequently, I think that the criter­
ion of 'proximity' should play only a 
secondary part in interpreting the Conven­
tion's criterion of 'place'. My choice is 
based not only on arguments supported by 
the authority of the text of the Convention, 
however important they may be, but it also 
has a deeper justification. Firstly, the con­
cept of 'proximity to the subject-matter' 
seems to me relatively more imprecise than 
'place of performance' (defined merely by 
reference to the circumstances of the case 
and the legal relationship in question), with 
the increased risk of multiplication of 
potential jurisdictions. 71 Secondly, I con­
sider that any provision, including proce­
dural provisions, in contractual matters 
should be interpreted so as to take best 
into account the actual source of the 
69 — See E. Tichadou, 'Conventions internationales unifiant le 
droit matériel et détermination du lieu d'exécution au sens 
de l'article 5, point 1, de la Convention de Bruxelles', 
Revue Trimestrielle de Droit Européen, 1995, p. 87, in 
particular paragraph 17. 
70 — The criterion of 'connection with the dispute' may, in case 
of doubt, also make it possible to situate mere payment 
obligations until the separation of obligations laid down by 
the De Bloos case-law is abandoned. 
71 — 'The use of criteria other than that of the place of 
performance, where that confers jurisdiction on a court 
which has no connection with the dispute, might jeopar­
dise the possibility of foreseeing which court will have 
jurisdiction and for that reason be incompatible with the 
aim of the Convention' (see the Custom Made judgment, 
cited above, paragraph 18). 
I - 6339 
OPINION OF MR RUIZ-JARABO — CASE C-440/97 
relationship creating the obligation: the 
intention of the parties. When the court 
attempts to determine the place of perfor­
mance of an obligation, clearly it must first 
and foremost establish what exactly was or 
could have been the will of the parties, 
without whose consensus the obligation 
would not exist. If the court can establish 
from the circumstances of the case the place 
of performance intended expressly or impli­
citly by the parties, taking into account the 
nature of the legal relationship in question, 
the forum contractus designated in this way 
will have the legitimacy of having been 
intended, albeit indirectly, by the parties, 
and will also be justified by its foreseeable 
proximity to the subject-matter. In other 
words, the defendant may be sued in the 
court for the place of performance of the 
contractual obligation because, in a certain 
way, he will have consented, by the expres­
sion of his will — which it will be the 
court's task to ascertain — to the creation 
of that special basis of jurisdiction. Clearly, 
the court which is competent by reason of 
the purely objective circumstance that it is 
close to the subject-matter will not have 
such legitimacy. 
107. If the court of first instance had 
applied this criterion to the present case, 
and on the basis of the information avail­
able to the Court of Justice, it seems that, 
taking account of the circumstances of the 
case and the fact that the obligation in 
question is to carry goods without dama­
ging them, the court of first instance could 
easily have found that, in relation to parties 
actually bound by a contract of carriage, 
the place of performance of that obligation 
was the place designated as such by the 
parties. Without the need for long digres­
sions concerning the law applicable to the 
legal transaction in question, it seems clear 
from the facts of the main proceedings that 
the port of destination is that specified by 
the bill of lading, which is Santos, in Brazil. 
On that ground, it must be deemed to be 
the place of performance. Where the courts 
of a State which is not a party to the 
Convention are designated, the special 
jurisdiction of Article 5 lapses. In the 
absence of other concurrent bases of jur­
isdiction, the French court must decline 
jurisdiction. I should point out, however, 
that this question must be examined by the 
national court and not by the Court of 
Justice. 
108. To sum up, the forum designated by 
the place of performance of a contractual 
obligation by reference to the circum­
stances of the case, taking account of the 
relationship creating the obligation in ques­
tion, combines the advantages of autono­
mous interpretation with those which fol­
low from a simple, unequivocal criterion 
for all contracts. It does not in itself entail 
any greater dispersion of jurisdiction than 
that occasioned by the Tessili technique 
itself, and it observes scrupulously the letter 
and the spirit of the Convention. Any 
doubts which may arise in determining it 
must be resolved in conformity with the 
criterion of the connection which the 
dispute has with a specific place, as that is 
the specific purpose of the forum contrac­
tus created by the Convention. 
I - 6340 
GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL 
XIII — Conclusion 
109. For the reasons which I have given above, I propose that the Court reply as 
follows to the question from the national court: 
Article 5, point (1), of the Brussels Convention of 27 September 1968 on 
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 
must be interpreted as meaning that the place of performance of a contractual 
obligation means the place designated by reference to the circumstances of the 
case, taking account of the nature of the legal relationship in question, it being 
understood that it is presumed that that place is the same as the place where the 
obligation characterising the legal relationship in question was or is to be 
performed. If more than one place is designated, that having the closest 
connection with the dispute must be chosen. 
I - 6341