61997CC0420_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 The Hof van Cassatie (Belgian Court of Cassation) has referred to the Court a request for interpretation of Articles 2 and 5(1) of the Brussels Convention, (1) in order to decide which court has territorial jurisdiction to hear and determine an application comprising several claims for payment of sums of money based on different obligations arising from the same contract.
2 The court making the reference seeks to ascertain whether in such circumstances the relevant provisions of the Convention allow multiple claims to be submitted to one court although the claims are based on contractual obligations of equal rank and, according to the Court's settled case-law, should be enforced in two different Contracting States.
I - The Brussels Convention
3 The first paragraph of Article 2 of the Convention lays down the principle whereby the court having jurisdiction is determined according to the place where the person being sued is domiciled.
Thus it provides: `Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State'.
4 Article 5 of the Convention, however, provides the plaintiff with a choice of courts having jurisdiction.
In particular, in matters relating to a contract, Article 5(1) states: `A person domiciled in a Contracting State may, in another Contracting State, be sued ... in the courts for the place of performance of the obligation in question ...'.
5 Article 22, which lays down the rules applying in cases where related actions are brought in the courts of different Contracting States, reads:
`Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.
A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.
For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.'
II - Facts and procedure
6 Bodetex BVBA (hereinafter `Bodetex'), whose registered office is in Belgium, has operated for several years on the Belgian and Netherlands markets as a commercial agent for Leathertex Divisione Sintetici SpA (hereinafter `Leathertex'), whose registered office is in Italy. Bodetex has acted as a commercial agent in return for a commission.
7 Since a number of commission payments for 1987 were outstanding despite its complaints,
Bodetex, in a letter dated 9 March 1988, announced that the commercial agency agreement was terminated, and requested payment of the outstanding commission and compensation for termination of the agreement without notice.
When it received no response from Leathertex, Bodetex sued the latter for payment before the Rechtbank van Koophandel te Kortrijk (hereinafter
`the Rechtbankz').
8 By judgment of 1 October 1991, the Rechtbank ruled that the two obligations forming the
subject-matter of the application should be treated separately.
It found that the first obligation, namely to give a reasonable period of notice in the event of terminating a commercial agency agreement and, if such notice is not given, to pay compensation for termination, should be performed in Belgium, whilst the second obligation, namely to pay commission, should be performed in Italy according to the principle whereby a debt must be collected at the place where the debtor is domiciled.
9 The Rechtbank thus declared it had jurisdiction under Article 5(1) of the Convention to hear and determine the claim relating to notice of termination, and also that it was competent to deal with the case as a whole since the two obligations were related. It proceeded to order Leathertex to pay Bodetex the outstanding commission and compensation for termination of the agreement.
10 Leathertex appealed against that judgment before the Hof van Beroep (Court of Appeal), Ghent.
By judgment of 29 October 1993, that court confirmed that the Rechtbank was competent to hear and determine the claims made by Bodetex.
11 The Hof van Beroep, Ghent, noted that the application made by Bodetex was based on two separate obligations arising from the contested agreement. It ruled that since the obligation to pay commission could not be regarded as the principal obligation, the two obligations should be regarded as equal in rank.
12 In those circumstances, the Hof van Beroep, Ghent held that there was no reason why Bodetex should not bring its action before the court for the place of performance of either of the obligations.
It was of the view that the Rechtbank was competent to hear and determine this particular case as it was the court for the place where the obligation to comply with a reasonable period of notice was to be performed.
13 Leathertex applied for review of that judgment.
III - The question submitted by the national court
14 The Hof van Cassatie held that the fact that the obligation to pay commission could not be regarded as the principal obligation was not disputed, that the Belgian court was competent to rule on the obligation to pay compensation for termination of the agreement, since that contractual obligation had to be performed in Belgium, and that the two obligations were equal in rank.
15 The question arose whether, in such circumstances, a plaintiff who is a commercial agent may derogate from the general rule laid down in Article 2 of the Convention and refer the matter to the court which is competent by reason of the place of performance, within the meaning of Article 5(1), of either of the obligations at issue.
16 The Hof van Cassatie stayed proceedings and referred the following question to the Court:
`Are Articles 5(1) and 2 of the Brussels Convention, in the version applicable to the present case, to be interpreted as meaning that a composite claim founded on different obligations arising from the same contract may be brought before the same court, even though, according to the jurisdictional rules of the State in which the proceedings are brought, one of the contractual obligations on which the claim is based is to be performed in that State and the other is to be performed in another EC Member State, having regard to the fact that the court before which the proceedings are brought decides, on the basis of the claim brought before it, that neither of the two obligations forming the subject-matter of the claim is subordinate to the other and that they are of equal rank?'
IV - The answer to the question
17 By the question it has raised, the Hof van Cassatie is essentially asking the Court whether Article 5(1) of the Convention can be interpreted as meaning that the same court can hear and determine an application comprising several heads of claim based on obligations of equal rank arising from the same commercial agency agreement when, according to the respective places of performance of those obligations, within the meaning of Article 5(1) of the Convention, the courts of more than one Contracting State have jurisdiction.
18 The question expresses the concern of the referring court to comply with the provisions of the Convention, thereby avoiding fragmentation of the case, with the possibility of each of its parts being dealt with by courts located in different Contracting States, contrary to the objectives of the Convention.
19 May I point out that, as the Court has consistently held, the Convention `is intended to determine the international jurisdiction of the courts of the Contracting States, to facilitate the recognition and to introduce an expeditious procedure for securing the enforcement of judgments'.
Those objectives `imply the need to avoid, so far as possible, creating a situation in which a number of courts have jurisdiction in respect of one and the same contract'. (2)
20 The Court has also ruled that `multiplication of the bases of jurisdiction in one and the same type of case is not likely to encourage legal certainty and effective legal protection throughout the territory of the Community' (3) and involves litigants in the `risk of irreconcilable decisions ...'. (4)
21 I should like to make clear, before any other consideration, that the principle laid down in Article 2 of the Convention whereby the
competent court is that of the place were the person being sued is domiciled, which is one of the options open to the plaintiff, would undoubtedly have meant it was possible to avoid the difficulties encountered by the Belgian court.
As the Court of Justice has ruled, `the plaintiff is always entitled to bring his action before [that] court ... in accordance with Article 2 of the Convention, which thereby provides a certain and reliable criterion'. (5)
22 The forum of the person being sued may thus hear and determine all the heads of claim and does not need to concern itself with determining the place where they should be performed, as Article 5(1) requires, at the risk of having to decline jurisdiction in part where one of the claims has been or is to be performed elsewhere.
23 Is it necessary therefore to settle for Article 2 of the Convention, as the Hof van Cassatie appears to be minded to do, (6) where application of Article 5(1) would result in the case being split between several fora?
24 In the context of the case in the main proceedings and in view of the arguments contained in the order for reference, this question could be answered in three different ways.
25 Firstly, it is tempting, as the Government of the United Kingdom has done, to revert to the respective rankings of the obligations concerned.
Establishing a hierarchy between the obligations on which the claim is founded where, as in the circumstances of the present case, their characteristics appear to lend themselves to so doing naturally leads to combining the claims within the jurisdiction of a single court - that for the place of performance of the principal obligation - without the need to resort to Article 2 (Part A below).
26 Secondly, if one assumes that the obligations at issue are, or should be, regarded as being of equal rank, and that their places of performance are located in different Contracting States, it seems appropriate to assess the effect of that situation as regards determining jurisdiction under Article 5(1) of the Convention and in the light of the objectives of the Convention (Part B below).
27 Lastly, it must not be forgotten that the multiplication of fora having jurisdiction as a result of applying Article 5(1) in the case in the main proceedings follows to a great extent from the interpretation which has traditionally been given of the concept of `the place of performance' since the Tessili judgment. (7)
It is therefore necessary to look at alternative solutions which would result in Article 5(1) being applied in a way which corresponded more closely to the objectives of the Convention, in order to make the choice of jurisdiction provided for in the Convention more relevant (Part C below).
28 Before reverting to each of these points, it should be noted that the version of the Convention applying to the case in the main proceedings, the relevant provisions of which the Hof van Cassatie is seeking interpretation, (8) is the version contained in the Convention of 9 October 1978, cited above, which entered into force on 1 November 1986, since Bodetex instituted its proceedings by a writ dated 2 November 1988.
29 No-one disputes the fact that the case in question is a matter relating to a contract since, according to the file, the Court has already described as such the category to which the
agreement at issue belongs. (9)
A - The contested obligations are of equal rank
30 Referring to the above-mentioned Shenavai judgment in particular, which quotes the maxim accessorium sequitur principale, (10) the United Kingdom Government states that it is important that the Court
should emphasise the need, where there is more than one obligation, for a national court to identify the principal contractual obligation on which a claim is based for the purposes of Article 5(1) of the Convention.
31 It considers that in the present case it is the obligation to pay the commission sought which is the principal obligation, since the only ground on which Bodetex made the claim that Leathertex terminated the agreement without notice, and therefore sought compensation, was Leathertex's failure to pay that commission.
Thus, in the view of the United Kingdom Government, a single court should be designated, that of the place of performance of the obligation to pay commission, in pursuance of Article 5(1).
32 Observing that the order for reference regards the contested obligations as being of equal rank, the United Kingdom considers that, as it has consistently held it is entitled to do, the Court should reformulate the question referred to it, in order to provide the referring court with an answer which will be of use to it and, by establishing an order of precedence among the contested obligations, enable it to determine the case before it.
33 In the Shenavai judgment, cited above, the Court held that regard had to be had `solely to the contractual obligation whose performance is sought in the judicial proceedings' and stated that `in the particular case of a dispute concerned with a number of obligations arising under the same contract and forming the basis of the proceedings commenced by the plaintiff ... it will be the principal obligation which will determine its jurisdiction.' (11)
34 An action in contract should not therefore be brought before the court for the place of performance of any obligation of the contract at random, which is understandable if one wishes to avoid there being more than one court having jurisdiction.
35 The solution advocated by the United Kingdom Government, to put the points it makes in different terms, sets the case in the main proceedings in the context of that case-law and provides an answer which meets the objectives of the Convention by avoiding there being more than one court having jurisdiction.
36 The approach proposed by Bodetex is similar.
In Bodetex's view, the situation in which it found itself in relation to Leathertex, to which it was bound by a commercial agency agreement, is similar to the business relationship between Mr Ivenel, a sales representative, and his employer in the Ivenel case: (12) the duties of canvassing for new customers in order to negotiate and conclude contracts on behalf of the principal, the existence of a longstanding business relationship
between the parties, the requirement to give notice or pay compensation in the event of termination of the agreement and the subordinate position of their contracting parties, which was of a legal nature in the case of Mr Ivenel and of an economic nature in the case of Bodetex, are the same in both cases.
37 Bodetex proposes, therefore, that the solution the Court adopted in the Ivenel case should be transposed to the present case, which means it is necessary to decide which work `characterises the contract'.
Bodetex suggests that the answer to this question should be that the work characterising the contract involves finding new customers and distributing the products named in the agreement.
It considers that the place where the service should be provided is Belgium, in whose territory the claims should therefore be combined.
38 Like the Government of the United Kingdom, Bodetex seeks not merely to establish a hierarchy among the obligations at issue, but also to designate which of those obligations takes priority, in order to combine the heads of claim before the court for the place where that obligation should be performed.
39 I cannot agree with this reasoning, particularly in view of the procedural context of the case in the main proceedings.
40 Let me point out first of all that the question itself clearly describes the obligations at issue as being of equal rank.
Moreover, the referring court expressly states that the fact that the two obligations are of equal rank is one of the given factors in the case on the basis of which the question was raised and that the reference for a preliminary ruling does not relate to that point.
41 Secondly, the Hof van Cassatie cites several of the grounds of the judgment delivered by the Hof van Beroep, Ghent, on 29 October 1993, which show that the Hof van Beroep clearly held that the `two obligations ranked equally in importance ...'. (13)
The Hof van Cassatie, refers to the Shenavai judgment, cited above, and states that the equal importance of the obligations has not been challenged. (14)
42 The wording of the question referred by the national court clearly reflects those elements of the national proceedings.
As the parties to the main proceedings have not challenged the legal characterisation given by the appeal court, the referring court did not consider that it should of its own motion raise the issue that that characterisation might be wrong; it may have been that this was not a legal possibility unless the Hof van Cassatie subscribed to the characterisation put forward by the Hof van Beroep, Ghent.
43 At all events, whether it was a legal obligation incumbent upon the national court or that court's own choice, the answer the Court of Justice gives to the question raised cannot disregard uncontested elements of the order for reference in case by so doing it provides the national court with
answers which are not directly relevant to the outcome of the case.
44 May I point out in this connection that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must take responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions it submits to the Court. (15)
45 I am therefore of the opinion that the finding made by the Hof van Cassatie that the obligations at issue are of equal rank should not be challenged.
B - The effect of there being more than one "place of performance"
46 In its question, the Hof van Cassatie states that, under the jurisdictional rules of the State
in which the proceedings are brought, one of the contractual obligations on which the claim is based is to be performed in the State of the court before which the case has been brought and the other is to be performed in another Contracting State.
47 The national court is referring implicity to the Court's case-law resulting from the Tessili judgment, cited above, application of which in the present case would lead to more than one place of performance and therefore to more than one court having jurisdiction. (16)
48 May I point out that according to that judgment: "It is for the court before which the matter is brought to establish under the Convention whether the place of performance is situated within its territorial jurisdiction.
For this purpose it 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..." (17)
49 The arguments put forward by the intervening parties provide an accurate summary of the
substance of the problem, at least as it appears in the context of the Tessili judgment, cited above.
50 The first possibillity is that the plaintiff's choice of jurisdiction remains open and application of Article 5(1) of the Convention, under that case-law, results in the obligations at issue being performed in more than one place, which means that there can be more than one court having jurisdiction.
This is the view held by the Italian Government and Leathertex.
51 A second is that, as the United Kingdom Government proposes in the alternative, the choice of jurisdiction should be abandoned in favour of the criterion of the domicile of the person being sued, in accordance with Article 2 of the Convention, which would avoid creating a situation in which a number of courts have jurisdiction in respect of one and the same case.
52 The final possibility is that, lastly, the court having jurisdiction to hear and determine one of the claims based on obligations which are of equal rank, under Article 5(1) of the Convention, also has jurisdiction to hear and determine the other claim if there is a relationship between those two claims which is so close that it is in the interest of good justice to examine and rule on them together in order to avoid irreconcilable outcomes.
This is the solution advocated by the Commission.
53 As regards the Commission's argument that jurisdictions should be combined since the claims are related, I consider this goes further than the wording of the Convention allows. (18)
54 It should be stated that, although relatedness is taken into account in the Convention, it is not considered to confer jurisdiction.
In other words, Article 22 of the Convention does not allow a court to decline jurisdiction in favour of another court on the ground that actions are related unless a related case has already been brought before that other court.
The provision
contained in Article 22 therefore applies only in such circumstances. It is only in that case that, as a result of a plea that the actions are related, the cases may both be brought before
one court.
55 The Court of Justice clearly stated this in its judgment in Elefanten Schuh: `Article 22 of the Convention is intended to establish how related actions which have been brought before courts of different Member States are to be dealt with.
It does not confer jurisdiction'. (19)
56 The Commission, however, accepts this view since it states that `so long as only one court is seised there is no question of applying Article 22'. (20)
57 It even adds that it is merely a matter of interpreting Article 5(1) in a way which will preclude situations likely to come within the scope of Article 22. (21)
58 Although the objective sought by the Commission is clear and undoubtedly legitimate, I have difficulty understanding the reasoning which led it to propose an interpretation of Article 5(1) which is so far removed from the text.
59 Direct combination of related actions before the same court, where the places of performance of the obligations on which they are based are situated in different Contracting States amounts to disregarding the criterion of the place of performance of one of those obligations, which is contrary to the provisions of Article 5(1).
60 In fact, the Commission's proposal amounts to altering the way the Convention deals with the question of related claims, going against the letter of its provisions and failing to take into account the intentions of the Contracting States, an outcome which was never actually envisaged, and this cannot be permitted.
61 The two other sets of arguments concern the choice to be made in the present case between Article 2 and Article 5(1), as interpreted in the light of the rule in Tessili, cited above.
This choice is dictated by the objectives of the Convention themselves.
62 We should remember that the Convention seeks to strengthen in the Community the legal protection of persons therein established. (22)
63 As can be seen from the case-law of the Court, as I have already mentioned, this requirement for legal protection is reflected in the need to avoid wherever possible a situation in which a number of courts have jurisdiction in respect of one and the same contract. (23)
64 In order to ensure that the Convention is fully effective, it is essential to unify the jurisdiction rules of the courts of the Contracting States, so as to avoid as far as possible multiplication of the bases of jurisdiction, and allow the plaintiff to identify easily the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued. (24)
It is thus a case of protecting legal certainty for persons within the territory of the Community by ensuring the predictability of the rules on jurisdiction that will apply.
65 Combining jurisdiction
also precludes the risk of irreconcilable decisions and facilitates the recognition and enforcement of judgments in States other than those in which they were delivered. (25)
66 This means that it is essential, if one wishes to comply with the spirit of the Convention, to promote solutions which favour the centralisation of proceedings and thus interpret the provision in this way.
67 The judgments delivered by the Court in cases involving multiple obligations confirm this course.
68 When it comes to identifying, among several obligations, the contractual obligation forming the basis of the legal proceedings, (26) the principal obligation, (27) or the obligation which characterises the contract, (28) the Court has advocated establishing, wherever possible, a hierarchy within the obligations at issue in order to avoid related proceedings being split between different courts.
69 In this particular case we are presented with a situation which does not allow a hierarchy to be established within the obligations, since they are described as being of equal rank.
70 The question is therefore whether, in view of this fact, the text of the Convention allows jurisdiction to be combined on other grounds.
71 The Court has held on several occasions that the categories of `special jurisdiction' enumerated in Article 5 of the Convention constitute derogations from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled, as laid down in the `General provisions' of Articles 2 and 3, and as such must be interpreted restrictively. (29)
72 One might gain from that case-law the idea that where recourse to a special jurisdiction produces results which clearly conflict with the objectives of the Convention it is necessary to
reject the choice of jurisdiction and say, as in the Humbert judgment, cited above, that Article 5(1) of the Convention does not apply.(30)
73 This solution seems to me to be of doubtful legal validity.
74 The Convention does not make the choice of jurisdiction subject to compliance with any prior condition.
A plaintiff is always at liberty to choose any of its terms where a case comes within the scope of the Convention and provided, naturally, the legal nature of that case allows the plaintiff to have recourse to one of the categories of special jurisdiction, if he so chooses. (31)
75 Moreover, the fact that in the Humbert judgment cited above the choice of jurisdiction was rejected in favour of the rule of jurisdiction contained in Article 2 of the Convention was
due to the specific nature of the main proceedings in that case, which related to obligations performed outside the territorial scope of the Convention. Application of Article 5(1) would have resulted in jurisdiction being located outside the territory of the Contracting States, a situation which is contrary to both the letter and the spirit of Article 5, which provides that a person domiciled in a Contracting State may be sued elsewhere than in that State only in another Contracting State, and excludes third States.
76 The Court of Justice has, moreover, observed that, whilst it is true that disadvantages arise from different aspects of the same dispute being adjudicated upon by different courts, the plaintiff is always entitled to bring his action in its entirety before the courts for the domicile of the defendant, which thus provides a sure and reliable criterion. (32)
77 In other words, the choice of jurisdiction provided in the interest of the parties, in particular of the plaintiff, still gives them the security of a predictable rule of jurisdiction, which the plaintiff may choose if, for his own particular reasons, the other rule of jurisdiction does not suit him.
78 The choice which is made may conflict with the objectives of the Convention: it is up to the plaintiff to assess to what extent the increased number of courts having jurisdiction as a result of applying Article 5(1) is the source of more inconvenience than would result from combining the heads of claim comprising his action before a single court situated in the place where the defendant is domiciled, if, under Article 5(1), one of the courts is situated in the Contracting State of his domicile.
79 I share the idea that Article 5(1) of the Convention cannot be prevented from applying on grounds other than those dictated by its own scope of application, even where the use which the plaintiff seeks to make of it leads to determining jurisdiction in a way which is not in accordance with the principles of the Convention, if that is the choice of the plaintiff.
80 Using the rule for determining jurisdiction contained in Article 2 of the Convention only where application of Article 5(1) is likely to have undesirable effects would be adding to the text of the Convention a condition which is not there.
81 It follows, therefore, that claims relating to two obligations of equal rank arising from one and the same contract, whose respective places of performance according to the jurisdiction rules of the State of the court seised of the matter are in two different Contracting States, may, under Article 2 of the Convention, be submitted to the same court, namely that of the Contracting State of the person being sued.
82 However, in that same situation, Article 5(1) of the Convention precludes one and the same court having jurisdiction to entertain both those claims where their places of performance are located in the territory of two different Contracting States.
83 The Court may consider that it is for the plaintiff to choose the provision which he thinks provides greater protection of his interests, even if he sacrifices thereby the advantages stemming from the existence of a single forum.
The proposed interpretation therefore constitutes one possible answer to the question referred by the national court.
84 However, the Court may also consider that observance of the principles of the Convention does not permit, in a case such as that now before it, that one of the terms of the choice of jurisdiction which is open to a party should result in a solution which is so far removed from those principles.
This is the opinion which I support, which leads me to propose to the Court an alternative interpretation of the provisions.
C - The effects of the content of the concept of `places of performance'
85 In referring to the conflict rules of the forum in order to determine the place of performance of the obligations at issue, the national court was naturally complying with the relevant Community case-law.
(1) The Tessili judgment
86 The method of determining the place of performance used by the Belgian courts is, as we have seen, in part the reason why there is more than one place of performance of the obligations at issue. (33)
87 Since the Convention entered into force the question has constantly been raised as to whether the expressions and concepts it contains should be regarded as autonomous, and hence common to all the Contracting States, or as referring to the substantive rules of the law applying in each case according to the conflict rules of the court first seised of the matter. (34)
88 In the Tessili judgment, cited above, the Court answered: `Neither of these two options rules out the other since the appropriate choice can only be made in respect of each of the provisions of the Convention to ensure that it is fully effective having regard to the objectives of Article 220 of the Treaty'. (35)
89 The Court has on several occasions ruled in favour of an autonomous interpretation of some of the concepts of the Convention, stating that, `according to settled case-law ... the Court will, in principle, interpret the terms of the Convention autonomously so as to ensure that it is fully effective having regard to the objectives of Article 220 of the EEC Treaty, for the implementation of which it was adopted'. (36)
90 However, as regards the term `place of performance' of contractual obligations within the meaning of Article 5(1) of the Convention, the Court's initial choice of reference to the conflict rules of the forum was recently confirmed very clearly, thereby dismissing indirectly any autonomous definition. (37)
91 The reference by the Court to the substantive law applicable was based on the differences obtaining between national laws of contract and in view of the absence, at the stage of legal development in 1976, of any unification of the substantive law applicable. (38)
It was stated that that position was justified also by the fact that determination of the place of performance of the obligations depends on the contractual context to which those obligations belong. (39)
92 The position set out in the Tessili judgment cited above reflects a legitimate concern not to impose on all the Contracting States a definition which conflicted with their national laws and
whose appropriateness as regard the objectives of the Convention was not clearly apparent.
93 Thus, the obligation to make payment, which obviously relates to a very large number of contracts and is directly at issue in the case in the main proceedings, (40) clearly shows the unsatisfactory nature of an autonomous definition in this area, which derives its content from the way in which some of the Contracting States determine the place of performance of this type of obligation.
94 Depending on whether payment is to be collected at the place of the debtor's domicile or the creditor's domicile, the place of performance of the obligation to make payment will be the place where either the defendant or the plaintiff is domiciled.
In addition to the difficulties relating to the choice between the national laws of the Contracting States, which are divided equally between the legal systems, (41) there is no rational criterion enabling arbitration in accordance with the principles of the Convention.
95 Adopting an autonomous definition based on the payment being payable at the place where the creditor is domiciled (42) amounts in fact to adopting a forum actoris which was clearly not that intended by the Convention. This can be seen from the fact that Article 2 provides that the jurisdiction of the courts of the defendant's domicile is the fundamental jurisdiction.
Moreover, as the Court itself pointed out: `the hostility of the Convention towards the attribution of jurisdiction to the courts of the plaintiff's domicile was demonstrated by the fact that the second paragraph of Article 3 precluded the application of national provisions attributing jurisdiction to such courts for proceedings against defendants domiciled in the territory of a Contracting State'. (43)
The Court added that: `apart from the cases expressly provided for, the Convention appears clearly hostile towards the attribution of jurisdiction to the courts of the plaintiff's domicile'. (44)
96 On the other hand, to identify the place of performance of an obligation to make payment as the place where the defendant is domiciled - which is the solution adopted by those Contracting States for whom a debt is payable at the debtor's place of domicile -
would remove the choice of jurisdiction provided for in the Convention, since this interpretation of Article 5(1), by adopting the place where the defendant is domiciled, means that Article 5(1) has the same tenor as Article 2.
97 In the Custom Made Commercial, cited above, the question submitted by the national court concerned application of the above-mentioned Tessili case-law to a claim for payment brought by a supplier against his customer under a contract for manufacture and supply, where the lex causae is constituted by a provision such as Article 59(1) of the Uniform Law on the International Sale of Goods annexed to the Hague Convention.
98 Application to the contractual relationship of a uniform law dispels the disadvantages attaching to the multiplicity of laws applicable.
However, the meaning of the relevant provision of that law, under which the place of performance of the obligation on the buyer to pay the price to the seller is the seller's place of
business or, if he does not have a place of business, his habitual residence, subject only to the proviso that the parties to the contract have not stipulated a different place for the performance of that obligation, determined that the court of the applicant was the court having jurisdiction.
99 The Court of Justice upheld its case-law, transposing it to the circumstances where a renvoi is made under conflict rules to a uniform law. (45)
It therefore declined to adopt an autonomous definition, establishing the place of business of the seller, and hence in this particular case, that of the applicant, as the place of performance of the obligation to make payment.
(2) Application to the present dispute
100 In the case in the main proceedings, the multiplicity of fora is the result of the differences between the national rules concerning the place of performance of obligations to make payment, as such differences appear following application of the conflict rules.
101 Although clearly contrary to the requirement to simplify the rules of jurisdiction, a multiplicity of courts having jurisdiction could be accepted if it was justified by other essential considerations resulting from the scheme of the Convention.
102 Besides the interest in having certainty regarding the rules of jurisdiction, it is also necessary to point out the importance of the connecting factor which must exist, so far as possible, between the dispute and the court having jurisdiction to resolve it. The special rules of jurisdiction, which apply to the forum contractus provided for in Article 5(1) of the Convention, are justified by the consideration that there is a close connecting factor between the dispute and the court having jurisdiction to resolve it, in order to ensure the proper organisation of the case. (46)
103 This principle stems from the idea that it will be easier for a court which is geographically proximate to the contractual relationship at issue, through the knowledge it has of the facts of the case, to rule on the matter before it.
104 Although the criterion of predictability certainly constitutes one criterion for interpreting Article 5(1), it should be remembered that it is the criterion of the connecting factor which lies at the origin of that provision.
An acceptable interpretation of Article 5(1) must therefore ensure that the meaning ascribed to the concept of `place of performance' reflects as far as possible a genuine connecting factor.
105 The Court's case-law moreover consistently refers to the fundamental nature of this principle, which justifies Article 5, and the freedom of choice which its existence gives alongside Article 2. (47)
106 It is difficult in this particular case to find such a connection between the claim for payment of commission sought and the corresponding forum according to the substantive law applicable, which is that of Italy, when one realises that the commission is the consideration for the performance of the agreement by Bodetex, which is established in Belgium and responsible, under the terms of the agreement, for the Belgian and Netherlands markets.
107 May I add that, with regard this time to the criterion of certainty or predictability of the rules of jurisdiction, identification of the competent forum by an indirect method is no more likely to promote comprehension of the rules of jurisdiction, since it means resorting to the private international law of the forum in order to determine the substantive law applicable, which localises the place of performance of the contested obligation.
108 It is clear therefore that, in the case in the main proceedings, application of Article 5(1) when interpreted for the purposes of the Tessili case-law cited above, comes up against several guiding principles of the Convention, to the extent that the situation clearly stimulated the Hof van Beroep, Ghent into seeking to bring the claims together by other means.
109 It seems to me that a solution which is closer to the requirements of the Convention could be applied in this case.
(3) To achieve a solution which is closer to the objectives of the Convention
(a) Place of performance: a term with a variety of meanings
110 It is necessary to start from the idea put forward by Advocate General Lenz (48) that the place of performance of an obligation is not defined, for the purposes of substantive law, on the basis of requirements such as those laid down in the Convention.
111 The substantive provisions relating to the place of performance `not only ... have, in the absence of agreement, to crystallise the parties' obligations, they must also demarcate the areas for which each of the parties are responsible, in case irregularities should arise in carrying out the contract...'. (49)
112 Advocate General Lenz adds that `the place of performance under substantive law generally determines merely the allocation of the risks and burdens connected with the transfer of money, the availability of which does not depend on the place of performance of the obligation in question'. (50)
He considers that it is necessary to `diverg[e] from the substantive law of the contract [if] ... those rules [cannot] serve to determine a court which [is] physically proximate to the relationship ...'. (51)
113 There is often therefore a discrepancy between the reasons which explain the definition of the place of performance of an obligation under substantive law, on the one hand, and the objectives sought by the Convention, on the other.
114 So, in addition to the drawback of the differences between the national laws, which conflict with the objective of harmonising rules of jurisdiction as sought by the Convention, it is also regrettable that application of the lex causae results in designating the forum on the basis of a place of performance which is legally determined for reasons other than those concerned with proper organisation of the proceedings.
115 May I say, lastly, that Mr Lenz's statement that `in neither of [the] judgments [in De Bloos v Bouyer and Tessili v Dunlop] did the Court take physical proximity as a reason for examining whether it was necessary to deviate from the substantive law (of the contract) in interpreting Article 5(1) ...' (52) could also be made with regard to the judgment in Custom Made Commercial, cited above.
116 This continuing tolerance of a version of a provision which is so far removed from what constitutes its main justification cannot be explained solely by the existence of a choice of jurisdiction, which enables a plaintiff facing procedural complications due, for example, to the multiplicity of fora or the existence of a negative conflict of jurisdiction, to base his claims on Article 2 of the Convention.
117 It reveals the proper quandary facing the Court when it has to provide an autonomous definition of the concept of the place of performance.
(b) The choice of an autonomous interpretation
118 There is no doubt that such an interpretation is difficult for a number of reasons.
119 Firstly, one wonders whether the very principle of an autonomous definition in the matter of contracts is not questionable from the point of view of legal certainty, since the Court has to define as many concepts of `place of performance' as there are contracts, which includes contracts sui generis and this means that it is faced with a never-ending task.
120 Secondly, assuming this tricky undertaking is embarked upon, the Court is required to give substance to the concept of `place of performance'.
The existence of uniform laws, which are thought to remove the obstacle, referred to in the Tessili judgment cited above, of the absence of unification of the substantive law applicable, was not sufficient, as we have seen, to alter the direction of the Court's case-law in Custom Made Commercial, cited above. (53)
121 The choice of consistency of case-law is the direct consequence of the fact that a uniform law, for reasons already stated, (54) is not always able to provide the Court with the information enabling it to devise an autonomous definition which complies with the objectives of the Convention.
122 I think, however, that, however tricky it may be, an autonomous definition of the place of performance is desirable.
123 The drawback to this process is that it depends on a case-by-case approach to each contract, which would lead to constant lack of legal certainty.
124 This factor, which is not entirely unfounded, does not, however, constitute a decisive criterion for dismissing the idea of an autonomous definition.
125 A case-by-case approach is in fact the way favoured by a renvoi to the rules of private international law.
A definition of the place of performance of each contract forming the subject of a dispute which the Court would be called upon to give, according to the scheme of autonomous interpretation,
has already been given by the national court according to a similar process.
126 In addition, it is quite justified to think that the drawbacks of this approach, in the circumstances of the Tessili judgment cited above, were exacerbated by the fact that in the absence of a uniform law the solutions thus devised still differ from one State to another.
Even where the applicable conflict of laws rules are derived from international rules, the definition of the place of performance of an obligation stems from a national law. Lastly, where the rule is itself defined at international level, its content is determined on the basis of considerations other than those of procedure.
127 Thus, the concept of place of performance, applying to an indeterminate number of obligations, is all the more elusive because the way in which it is determined in each case only applies in respect of the court which defines it.
128 In those circumstances, an autonomous interpretation has some legitimacy, that conferred on it by the objective of harmonisation and simplification of the Convention.
129 However, the risk that this analytical process will affect legal certainty for litigants should not be exaggerated.
130 An autonomous definition of the place of performance of an obligation will often be transposable to other obligations, of which there may be many. (55)
131 In its search for a solution which complies more closely with the objectives of the Convention, and more particularly Article 5(1) thereof, the Court will, so far as is possible, take care not to adopt an analytical approach which would lead to as many definitions as there are obligations.
132 Rather, I think that it would be more appropriate to determine a general criterion, whose application would serve to provide definitions applying, if not to every contractual obligation, at least to certain categories of contractual obligation.
133 I would add that the lack of legal certainty generated by the uncertainty affecting determination of the place of performance of the obligations seems to me to be greater in the case of application of the lex causae than of devising autonomous Community law.
134 The choice of an autonomous criterion is, in fact, likely to make it easier to devise pragmatic definitions applicable in a uniform and lasting manner to an increasing number of categories of obligation, according to one scheme, which meets the requirements of the Convention.
135 Recourse to rules derived from uniform laws is, however, desirable only to the extent that the concept of the place of performance which results from so doing complies with the requirements of the Convention.
136 I therefore conclude that it is necessary to follow the general direction of the Court's case-law on the Brussels Convention and provide an autonomous interpretation of the terms it uses.
(4) The place of performance of the contested obligations
137 In the case in the main proceedings, compliance with the criterion of the connecting factor between the dispute and the court having jurisdiction leads us to approach the process of determining the place of performance of the contested obligations in two stages:
(a) Obligations to make payment
138 It is appropriate to apply the Court's case-law in De Bloos, cited above.
139 The general principle in De Bloos would lead one to take into account the obligation corresponding to the contractual right on which the plaintiff's action is based. (56)
This therefore involves both the obligation to pay the commission sought in return for operating as an agent, as provided in the agreement, and the obligation to pay compensation for termination of the agreement in return for the obligation to comply with a term of notice at the end of the commercial agency agreement.
140 It should be remembered, however, that according to that judgment `in a case where the plaintiff asserts the right to be paid damages or seeks a dissolution of the contract on the ground of the wrongful conduct of the other party, the obligation referred to in Article 5(1) is still that which arises under the contract and the non-performance of which is relied upon to support such claims'. (57)
141 The De Bloos judgment cited above takes account of the fact that the claim is not seeking direct performance of a defaulting contractual obligation, but rather compensation for non-performance or draws the legal consequences therefrom, in order not to dissociate artificially the place of performance of the original contractual obligation from that of the `obligation replacing the unperformed contractual obligation', (58) which might also be termed a counter obligation.
142 Thus, in such a circumstance, the place of performance serving to determine jurisdiction is not, as the first principle set out in the above-mentioned judgment would have it, that of the obligation under the contractual law on which the plaintiff's action is based, but that of the unperformed obligation on which the claim for payment is based.
143 In this way, the multiplicity of heads of claim, which is sometimes the consequence of one and the same failure to perform a contractual obligation, does not result in a proliferation of jurisdictions.
144 The result is that, as regards the obligation to pay compensation for termination of the agreement, the obligation to which reference should be made for the purposes of Article 5(1) is the obligation to comply with a period of notice. (59)
145 On the other hand, if one follows the sense of the De Bloos judgment, cited above, that reasoning cannot be transposed to a claim for payment of commission.
The payment of commission does not in fact constitute an obligation replacing an unperformed contractual obligation, within the meaning of the judgment cited above, but, as the file shows, one of the main contractual obligations incumbent on the principal.
146 In these circumstances, the place of performance to be taken into account should be that of the actual obligation to make the payment.
147 I have already mentioned the difficulties involved in determining the place of performance of obligations to pay sums of money. (60)
148 If one follows the De Bloos ruling, the place of performance of the original contractual obligations is still determined by the substantive law applicable, which inevitably means that the competent forum is chosen according to whether the payment is to be collected at the place where the debtor is domiciled or at the place where the creditor is domiciled, and involves a risk that no account will be taken of any connecting factor between the dispute and the court having jurisdiction.
149 There is no reason to draw a distinction between these obligations since they come under the same category of obligations to make payment.
150 As Mr Lenz pointed out in his Opinion in the Custom Made Commercial case, cited above, regarding the payment of the purchase price - `in the case of disputes about the payment of the price arising on account of the alleged defective performance of the counter-obligation ... the court for the place at which the goods were intended to be supplied is, as a general rule, nearer to the facts than the courts for the place from which they were sent ...'. (61)
151 He therefore proposed that the Court should rule: `Where a supplier makes a claim against a customer for the payment of the price due under a contract for manufacture and supply to which the Uniform Law is applicable and the first part of Article 59(1) of the Uniform Law is applicable to that payment under the substantive law, the place of performance within the meaning of Article 5(1) of the Brussels Convention is the place agreed in the contract at which the goods are intended to be supplied ...'. (62)
152 The objective legal basis of a dispute, whether it be a claim for payment of a price or a claim for compensation, is often to be found at the place of performance of the obligation in kind, so that the corresponding forum is likely to be chosen according to the criterion of the close connecting factor between the dispute and the court having jurisdiction.
153 This is why I approve that view and I consider that it should be transposed to a case where a claim is for payment of commission allegedly due in respect of the proper performance of the service provided as part of a commercial agency.
154 The search for a close connecting factor between the court and the dispute, which provides the logical basis for this reasoning, should not be regarded as a desire to establish this connecting factor as a direct criterion of jurisdiction.
155 I agree with the Court that `Article 5 does not establish that connecting factor itself as the criterion for the choice of the competent forum' and `It is not possible for an applicant to sue a defendant before any court having a connection with the dispute since Article 5 lists exhaustively the criteria for linking a dispute to a specific court'. (63)
156 It seems to me, as it did to the Court, to be essential not to allow the use of criteria other than the place of performance where that place assigns jurisdiction to a forum which has no direct connection with the case.
157 Conferring jurisdiction on the court of the place of performance of the obligation forming the basis of the claim or, in the case of a claim for payment, of the place of performance of the relevant obligation in kind provides a way of improving the chances of ensuring there is a connecting factor.
However, the rule is by no means automatic, since the subject-matter or legal basis of the dispute before the court may be located elsewhere than at the place of performance of the obligation at the time when proceedings are instituted.
158 To the extent that it was not possible to contemplate establishing a direct criterion of jurisdiction based on the connecting factor, which would have affected the predictability of the competent forum by forcing the parties to discuss in every instance the question of which forum was best placed to hear and determine the dispute in order to agree on jurisdiction, it was decided to select the place of performance as the criterion which was best suited to achieve this purpose.
Its fixed nature, irrespective of whether a connecting factor with the dispute of the court it designates can be proved, guarantees a clear and precise determination of the rules of jurisdiction applicable.
159 This is the interpretation which the Court has given in this connection, ruling that `under Article 5(1), in matters relating to a contract, a defendant may be sued in the courts for the place of performance of the obligation in question, even where the court thus designated is not that which has the closest connection with the dispute'. (64)
160 Selection of the place of performance of the obligations to which payment of commission and compensation for termination of the agreement are the counter obligation must therefore take precedence, even where no close connection can be established between the dispute and the court.
161 To summarise, reference to the place of performance of contractual obligations in order to establish jurisdiction, where the claim is for payment of a price, seems to me to be likely to avoid, if not as a general rule at least to a significant extent, proliferation of jurisdictions.
It also seems to me to promote the search for a forum close to the dispute, without thereby threatening litigants' legal certainty by resorting directly to that criterion.
(b) Obligations in kind
162 It is appropriate to examine the factors which make it possible to establish the place of performance, for the purposes of Article 5(1) of the Convention, of the obligations in respect of which commercial agency commission and compensation for termination of the agreement are the counter obligations.
163 I think that, in order to remove from the definition of the concept of `place of performance' considerations not related to the geographical location stricto sensu of the obligation at issue, which is only valid with regard to the requirement laid down in the Convention that there must be a close connecting factor between the dispute and the court having jurisdiction, it is appropriate to refer to the place where the contested obligation was or must be actually performed.
164 Situated on the spot, near to one of the strategic points in the contractual process, the court has the facilities which that proximity should normally afford it in order to rule more quickly, and in full knowledge of the facts, on the dispute before it.
165 It should be pointed out that this approach is not totally new since, in view of their specific nature, contracts of employment do not come within the scope of the Court's Tessili judgment cited above, since their place of performance is defined autonomously.
166 After observing that `the obligation to be taken into consideration for the purposes of the application of Article 5(1) of the Convention to contracts of employment is always the obligation which characterises such contracts, namely the employee's obligation to carry out the work stipulated', (65) the Court held that, in this area `the place of performance of the relevant obligation must be interpreted as meaning, for the purposes of Article 5(1) of the Convention, the place where the employee actually performs the work covered by the contract with his employer'. (66)
167 The interpretation is justified by two different considerations.
168 On the one hand, contracts of employment display certain particular features compared with other contracts in that they create a lasting bond which brings the worker to some extent within the organisational framework of the employer's business and they are linked to the place where the activities are pursued, which determines the application of mandatory rules and collective agreements protecting the employee. (67)
The Court deduces from this that it is appropriate to determine the place of performance of the relevant obligation, for the purposes of applying Article 5(1) of the Convention, by reference not to the applicable national law in accordance with the conflict rules of the court seised but, rather, to uniform criteria which it is for the Court to lay down on the basis of the scheme and objectives of the Convention. (68)
169 On the other hand, the interpretation is based on the concern to afford proper protection to the party to the contract who is the weaker from the social point of view, in this case the employee. (69)
The Court considers that protection of that kind is best assured if disputes relating to a contract of employment fall within the jurisdiction of the courts of the place where the employee discharges his obligation towards his employer.
That is the place where it is least expensive for the employee to commence, or defend himself against, court proceedings. (70)
170 I do not think that, as regards the balance of relations between contracting parties, an agreement such as a commercial agency agreement is comparable to a contract of employment.
The relationship of economic dependency in which an agent finds himself with regard to his principal is not such that the agent must necessarily, as a result of his position, be regarded as the weaker party.
Being, as a matter of law, self-employed, (71) a commercial agent has significant room for manoeuvre in the organisation of his activity.
Save where he is prevented by an exclusive dealing contract, he may also be connected to more than one principal, which is likely to provide him with a minimum turnover sufficient to reduce any potential subjection.
171 Moreover, there are no regulations comparable to the law applying to contracts of employment, the mandatory provisions of which would apply at the place of performance of the contract.
The law applicable can be that chosen by the parties.
172 The reasons why I am proposing an autonomous definition of the place of performance are not therefore the same as those on which the Court decided to do so in respect of contracts of employment and do not have the same specific nature.
173 On the contrary, this choice is dictated by the particular ability of the actual place of performance, in an agency agreement, to reconcile the two criteria of the connecting factor and the predictability of the rules of jurisdiction.
174 As Article 7(2) of Directive 86/653 provides, a commercial agency agreement produces
its effects mainly within a territorial context determined by the agreement. At all events, whether or not the context is determined, examination of the agreement should make it possible to localise the actual place of performance of the obligations it contains, which is all the more justified because, in an agency agreement such as the one in the case in the main proceedings, the law applicable (72) leaves it to the parties themselves to determine the place of performance of their obligations.
175 In the present case, it is apparent from the order for reference that Bodetex was acting as a commercial agent for Leathertex, without an exclusive dealing agreement, on the Belgian and Netherlands markets.
176 Agreements provide details of the geographical location where they are to be performed.
However, reference to the obligation at issue means it is possible to avoid uncertainty in connection with agreements that can be performed simultaneously in the territories of more than one Contracting State, and at the same time designates the courts which are nearest to the case.
It is thus the place of performance of the obligation itself which must take precedence, as Article 5(1) of the Convention provides.
It will be for the national court, on the basis of the information at its disposal, to determine the place where, according to the agreement, the obligation at issue has been or should be performed.
177 This solution does not of course provide an automatic answer in cases where the proceedings are fragmented, since several obligations which arise from the same contract but are, or could be, performed in the territory of more than one Contracting State may, as in the present case, constitute the basis for the same proceedings.
178 However, the principle of determining the place of performance solely of the obligations in kind, where the obligation at issue relates to the payment of a sum of money, reduces that risk.
179 In the case which concerns us, where the obligations at issue in the proceedings are of equal rank, the existence of a single forum having jurisdiction depends on the existence of a single place of performance of the obligations in kind, to which the claims for payment correspond.
180 With regard to the claim for payment of compensation for termination of the agreement, it is necessary to refer to the place of performance of the original claim, failure to perform which is being contended, that is to say, the period of notice.
Since this period is constituted by the extension of the effects of the agreement as a whole, for a legally appointed time, (73) its place of performance is the same as that of the agreement itself and not of any specific obligation.
181 As regards the claim for payment of commission, the place of performance to be taken into consideration is that of the agency mandate granted to the commercial agent, whose commission constitutes the consideration therefor, which again covers the localisation of the agreement itself.
182 Where, as in the present case, the place of performance of the obligations at issue is the same as that of the agreement itself, and the scope of the agreement covers the territories of several Contracting States, it is for the court making the reference to determine that place of performance on the basis of the factors which enable it to designate one of the States as the State in whose territory the commercial agent will engage in most of his activity.
183 From a more general viewpoint, this policy does not exempt the referring court from first checking whether a hierarchy can be established between the contested obligations arising from an agreement, in order, as the Court has consistently held, to determine the principal obligation so as to designate the court which has jurisdiction.
Conclusion
184 I therefore propose that the Court give the following answer to the question submitted by the Hof van Cassatie:
Article 5(1) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, is to be interpreted as meaning that a composite claim for payment of commercial agency commission and a claim for payment of compensation for termination of an agreement, based on obligations presented as being of equal rank and arising from the same commercial agency agreement, may be brought before the same court if the place where the agency mandate to which the commission relates has been or is due to be actually performed, and the place where the obligation to comply with the period of notice of termination has been or is due to be actually performed, to which the compensation for termination relates, are situated in the territory of the same Contracting State.
(1) - Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972, L 299, p. 32), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and (amended text) p. 77, hereinafter referred to as `the Convention').
(2) - Case 14/76 De Bloos [1976] ECR 1497, paragraphs 8 and 9.
More recently, Case 266/85 Shenavai [1987] ECR 239, paragraph 8.
(3) - Case 34/82 Peters [1983] ECR 987, paragraph 17.
(4) - Case C-125/92 Mulox IBC [1993] ECR I-4075, paragraph 21.
(5) - Case 32/88 Humbert [1989] ECR 341, paragraph 21.
(6) - In Section 3, paragraph 3 of the French translation of the order for reference.
(7) - Case 12/76 [1976] ECR 1473.
(8) - See points 3 and 4 of this Opinion.
(9) - Case 9/87 Arcado [1988] ECR 1539, paragraph 16 of which provides:`proceedings relating to the wrongful repudiation of an independent commercial agency agreement and the payment of commission due under such an agreement are proceedings in matters relating to a contract within the meaning of Article 5(1) of the Convention of 27 September 1968'.
(10) - Paragraph 19.
(11) - Paragraphs 18 and 19.
(12) - Case 133/81 [1982] ECR 1891.
(13) - Page 2 of the English translation of the abridged order for reference.
(14) - Pages 3 and 4 of the English translation of the abridged order for reference.
(15) - Case C-295/95 Farrell [1997] ECR I-1683, paragraph 11.
(16) - In this regard, the order for reference is not totally clear in the description it gives of the reasoning employed by the Hof van Beroep, Ghent in entertaining jurisdiction and one might doubt the fact that performance of the obligations at issue under the relevant jurisdictional rules should be located in different contracting States.
The Hof van Cassatie states that the Hof van Beroep, Ghent,
ruled that, under the Belgian conflicts rule, the obligation to give notice of termination must be performed in Belgium but that the judgment of the Hof van Beroep, Ghent, did not apply that rule as regards the obligation to pay outstanding commission (p. 6 of the French translation of the abridged order for reference). The reference for a preliminary ruling is based on the hypothesis of there being more than one court having jurisdiction upon application of the relevant conflict rules, although the appeal court only applied those rules in part, which detracts from the value of the question referred.
In reality, this ambiguity is illusory.
There is no doubt that the Hof van Beroep, Ghent, only referred to its conflicts rule in the case of one of the two obligations at issue.
However, the fact that it upholds a judgment based not on the fact that the obligations must be performed in the same place according to the relevant conflict rules but that they are related, in order to justify combining the claims before the same court, shows that determining the place of performance of the second obligation in the light of the conflict rules would have resulted in identification of another place of performance.
If this was not the case, it would have been necessary to combine the claims under the relevant rules of private international law alone.
The question referred by the Hof van Cassatie thus confirms the existence of the two separate places of performance resulting from the lex causae, and is definitely situated in the context defined by the Court's judgment in Tessili, cited above.
(17) - Paragraph 13.
(18) - It should be pointed out that this line of argument, which is held exclusively by the Commission in its written observations, was only put forward at the hearing in order to supplement its main contention that the court having jurisdiction should
be that for the place where the obligation is actually performed, thus demonstrating a shift in its original position.
(19) - Case 150/80 [1981] ECR 1671, paragraphs 18 to 20, emphasis added.
(20) - Paragraph 17 of its written observations.
It should be added that Article 6 of the Convention provides the opportunity of combining related cases before a single court which has jurisdiction, thus avoiding the risk of breaking up the proceedings on any ground apart from an objection of connection, but this provision contains an exhaustive list of the cases concerned: where there are a number of defendants, actions on a warranty or guarantee or in any other third party proceedings, counterclaims, both contractual proceedings
and proceedings in matters of immovable property rights against the same defendant, so that it does not apply in all related cases.
Likewise the jurisdictional rules in matters of insurance and in matters of contracts entered into by consumers, and exclusive jurisdictions ensure from the start of
proceedings that related claims are combined by appointing the court of a single Contracting State.
(21) - Ibid.
(22) - Preamble to the Convention.
(23) - See points 19 and 20 of this Opinion.
(24) - See, in particular, Case C-383/95 Rutten [1997] ECR I-57, paragraph 13, and C-295/95 Farrell, cited above, paragraph 13.
(25) - See, for example, the judgment in Mulox IBC, cited above, paragraph 21.
In addition to the clear disadvantages for individuals caused by irreconcilable decisions delivered in related cases, from the point of view of the exact content of the relevant legal rule it should be pointed out, as the Court of Justice has done, that `the risk of irreconcilable decisions [constitutes a] reason for which recognition or an order for enforcement is withheld by virtue of Article 27(3) of the Convention' (Case C-220/88 Dumez France and Tracoba [1990] ECR I-49, paragraph 18).
(26) - De Boos judgment, cited above.
(27) - Shenavai judgment, cited above.
(28) - Ivenel judgment, cited above.
(29) - Case 189/87 Kalfelis [1988] ECR 5565, paragraph 19 and Case 32/88 Humbert, cited above, paragraph 18.
(30) - Paragraph 19.
(31) - Thus, in the Kalfelis judgment, cited above, the impossibility for the court seised of a claim based on a combination of tortious liability, breach of a contractual obligation and unlawful enrichment to hear and determine, on the basis of Article 5(3) of the Convention (jurisdiction in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred), parts of that claim which are not tortious is justified on grounds relating to the scope of the provision in question.
(32) - Kalfelis judgment, paragraph 20, and Humbert judgment, paragraph 20.
(33) - Point 47 et seq. of this Opinion.
(34) - The Tessili and De Bloos judgments, both delivered on 6 October 1976, are the first of the Court's judgments interpreting the Convention.
(35) - Paragraph 11.
(36) - Farrell judgment, cited above, paragraph 12.
A definition of the term `civil and commercial matters' had been given by the Court back in 1976 in the judgment in Case 29/76 LTU [1976] ECR 1541.
Other definitions followed: the term `matters relating to a contract' in the Peters judgment, `matters relating to tort, delict or quasi-delict', in the Kalfelis judgment, or the term `maintenance creditor' in the Farrell judgment, to cite but a few.
(37) - The solution given in the Tessili judgment, paragraph 13, referred to in the Shenavai judgment, paragraph 7, was referred to again in the judgment in Case C-288/92 Custom Made Commercial [1994] ECR I-2613, paragraph 26 et seq.
(38) - Tessili judgment, paragraph 14.
(39) - Ibid.
(40) - See point 7 of this Opinion.
(41) - The following Contracting States
consider that obligations to make payment are, in principle, to be performed at the place where the debtor is domiciled: the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic and the Grand-Duchy of Luxembourg; those which consider that they are, in principle, to be performed at the place where the creditor is domiciled are: the Kingdom of Denmark, the Hellenic Republic, Ireland, the Kingdom of the Netherlands, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
(42) - In matters relating to the international sale of goods, for example, the Hague Convention of 1 July 1964 relating to a Uniform Law on the International Sale of Goods (United Nations - Treaties Series, 1972, vol. 834, No 11929, p. 107) and the Vienna Convention of 11 April 1980 publishing the United Nations Convention on contracts for the international sale of goods
(Decree No 87-1034 of 22 December 1987, Journal officiel de la République française of 27 December 1987, p. 15241) state that payment must be made at the seller's place
of business or, if he does not have a place of business, at his habitual residence.
(43) - Dumez France and Tracoba judgment, cited above, paragraph 16.
(44) - Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 17.
(45) - Paragraph 28.
(46) - Report on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters.
(47) - Judgments in Tessili, paragraph 13; Ivenel, paragraph 11; Shenavai, paragraph 6, and Custom Made Commercial, paragraph 13.
(48) - Opinion in Custom Made Commercial, cited above.
(49) - Ibid., point 26.
(50) - Ibid., point 21.
In point 26, Mr Lenz quotes the example of Article 59(1) of the Uniform Law on the International Sale of Goods, which provides that the purchaser's obligation to make payment is to be performed at the creditor's place of business.
That rule, he says, is based on the view that the person from whom
a sum of money is due has to bear the risks attaching to the payment operation.
(51) - Ibid., point 80.
(52) - Point 49.
(53) - Point 97 et seq. of this Opinion.
(54) - Point 98 of this Opinion.
(55) - One might imagine that the place of performance of a service of the type provided by an individual engaged in commercial distribution, where that activity is geographically defined by the terms of the agreement, could give rise to a transposable definition, whatever the nature of the distribution agreement concerned.
(56) - Paragraph 13.
(57) - Paragraph 14.
(58) - Paragraph 17.
(59) - The period of notice is laid down in Article 15 of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17).
(60) - Point 94 of this Opinion.
(61) - Point 80.
(62) - Ibid., point 82.
Emphasis added.
With regard to the place of performance of the obligation to make a payment for the purposes of Article 59(1) of the Uniform Law on the Sale of Goods, see points 97 and 98 of this Opinion.
(63) - Custom Made Commercial judgment, cited above, paragraphs 12 and 13.
(64) - Ibid., paragraph 21.
(65) - Mulox IBC judgment, cited above, paragraph 14.
(66) - Ibid., paragraph 20, emphasis added.
(67) - Ibid., paragraph 15.
(68) - Ibid., paragraph 16.
(69) - Ibid., paragraph 18.
(70) - Ibid., paragraph 19.
(71) - Article 1(2) of Directive 86/653.
(72) - Which, according to Articles 5 and 6 of the Hague Convention of 14 March 1978
publishing the Convention on the law applicable to agency (Decree No 92-423 of 4 May 1992, Journal officiel de la République française of 8 May 1992, p. 6307) is either the internal law chosen by the parties or that of the State where, at the time of formation of the agency relationship, the agent has his business establishment or, if he has none, his habitual residence, or lastly that of the State where the agent is primarily to act if the principal has his business establishment, or if he has none, his habitual residence in that State.
(73) - Article 15 of Directive 86/653.