Opinion of the Advocate General — ECLI:EU:C:2010:6
Date: 2010-01-12
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Courts for the place of performance of the contractual obligation on which the claim is based – Contract for the provision of services – Services provided at several places in different Member States – Applicability of the regulation (Council Regulation No 44/2001, Art. 5(1)(b), second indent) 2. Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Courts for the place of performance of the contractual obligation on which the claim is based – Contract for the provision of services – Commercial agency – Jurisdiction of the courts for the place of the main provision of services (Council Regulation No 44/2001, Art. 5(1)(b), second indent) 1. The second indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that that provision is applicable where services are provided in several Member States. Where the services in question are provided at several places in different Member States, a differentiated approach cannot be applied to the objectives of proximity and predictability pursued by the centralisation of jurisdiction in the place of the provision of services under the contract at issue and by the determination of sole jurisdiction for all claims arising out of that contract. (see paras 27, 29, operative part 1) 2. The second indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that where services are provided in several Member States, the court which has jurisdiction to hear and determine all the claims arising from the contract is the court in whose jurisdiction the place of the main provision of services is situated. For a commercial agency contract, that place is the place of the main provision of services by the agent, as it appears from the provisions of the contract. The determination of the place of the main provision of services according to the contractual choice of the parties meets the objective of proximity, since that place has, by its very nature, a link with the substance of the dispute. If the provisions of a contract do not enable the place of the main provision of services to be determined, but the agent has already provided such services, it is appropriate, in the alternative, to take account of the place where he has in fact for the most part carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as it appears from the provisions of the contract. For that purpose, the factual aspects of the case may be taken into consideration, in particular, the time spent in those places and the importance of the activities carried out there. Finally, if the place of the main provision of services cannot be determined on that basis, it must be regarded as the place where the commercial agent is domiciled. That place can always be identified with certainty and is therefore predictable. Moreover, it has a link of proximity with the dispute since the agent will in all likelihood provide a substantial part of his services there. (see paras 36, 38-43, operative part 2)