62000CC0256_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1. The object of this reference for a preliminary ruling is to determine the forum of the place of performance of a contractual obligation under Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter the Brussels Convention). The appellant Belgian companies, Six International Limited and Six Construct International SA, whose legal successor is SA Besix (hereinafter Besix), on the one hand, and the respondent company, WABAG Wasserreinigungsbau Alfred Kretzschmar GmbH & Co (hereinafter WABAG) - part of the Deutsche Babcock group - on the other, had agreed to submit a joint tender relating to a public contract in Cameroon. They are currently involved in a dispute before the Belgian courts concerning whether WABAG is in breach of an exclusivity obligation contained in the agreement in so far as, like the defendant WABAG, the co-defendant Planungs- und Forschungsgesellschaft Dipl. Ing. W. Kretzschmar GmbH & Co KG (hereinafter AFOG), which belongs to the same group of companies, took part in another undertaking's tender. The Court is being asked to determine whether the Belgian courts have jurisdiction to hear the case.
II - The relevant legislation
2. The relevant provisions of the Brussels Convention, in the version applicable in this case, are as follows:
Article 2
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.
...
Article 5
A person domiciled in a Contracting State may, in another Contracting State, be sued:
1. in matters relating to a contract, in the courts for the place of performance of the obligation in question;
...
III - Facts
3. According to the referring court, the facts of the case are as follows:
- On 20 December 1983, Deutsche Babcock Anlagen AG, the main company in the Deutsche Babcock Group, of the one part, and the companies Six International Ltd and Six Construct International Ltd, which have both now been succeeded by SA Besix ... of the other part, entered into an agreement to prepare jointly a tender relating to the project of the Ministry of Mines and Energy of Cameroon called "Water supply in eleven urban centres of Cameroon" and, if an order were received, to perform jointly as a group the contract concluded with the client.
According to the memorandum which they drew up on that date, the parties undertook to "act exclusively and not to commit themselves to other partners, subject to the competitiveness of each partner's tenders".
- On 24 January 1984, WABAG Wasserreinigungsbau Alfred Kretzschmar GmbH & Co KG ..., which is part of the Deutsche Babcock group, and Besix signed an agreement for the purpose set out in the memorandum of 20 December 1983.
That agreement confirmed the exclusivity stipulated in the memorandum, but did not repeat the proviso relating to the competitiveness of tenders.
- The WABAG-Besix group submitted its tender on 30 January 1984.
- When the tenders were opened, Besix found that PLAFOG, also a member of the Deutsche Babcock group, had taken part in the tender submitted by another company, Perusythyma (hereinafter: "POY"), a company incorporated under Finnish law, about which Besix immediately complained to WABAG. WABAG replied by telex of 8 February 1984 that this was a mistake due to poor exchange of information within the group and apologised for it.
- The tender by the WABAG-Besix group was placed sixth out of the six tenders received, being appreciably more expensive than the competing tenders; the Finnish tender was placed fifth.
The contract was subsequently divided up and the execution of the different lots entrusted to several undertakings.
Lot 1, on the one hand, and lots 3, 4 and 5, on the other, were entrusted to the Finnish main contractor whose tender included the participation of PLAFOG.
In respect of that lot, the tenders were classified as follows:
1. company X,
2. company Y,
3. the Finnish company and PLAFOG,
4. company Z,
5. WABAG-Besix.
4. Besix consequently wrote to the Deutsche Babcock group claiming compensation for the damage caused to it as a result of breach of the exclusivity agreement.
IV - Procedure before the national courts
5. Thereafter, Besix brought an action against Deutsche Babcock, WABAG and PLAFOG before the Tribunal de commerce (Commercial Court), Brussels, seeking damages of BEF 80 000 000. That court stayed proceedings in regard to Deutsche Babcock, and, for the rest, dismissed the claim. Besix has appealed against that judgment. By way of cross-appeal, WABAG and PLAFOG submit that the Belgian courts have no jurisdiction to hear the case.
V - Findings of the national court
6. The Court d'appel first finds that the contractual obligation in question, within the meaning of Article 5(1) of the Brussels Convention, is the abovementioned undertaking of exclusivity.
7. It then notes, citing the case-law of the Court of Justice, that the place of performance of the obligation in question must be determined in accordance with the law governing that obligation as designated by the rules of conflict of laws of the court before which the matter is brought. Under the Belgian conflict rules, Belgian law is applicable in this case.
8. Finally, as regards the place of performance, the Court d'appel finds that the registered office of the party against whom enforcement is sought cannot in any event be considered to be the place of performance since it was clearly the parties' implicit but certain [intention] ... to contract a general obligation of exclusivity applicable in any place in the world.
9. The question therefore arises for the Cour d'appel whether the fact that the undertaking to act exclusively was also to be honoured in Belgium is sufficient to confer jurisdiction on the Belgian courts, in accordance with Article 5(1) of the Brussels Convention.
10. The objective of the Brussels Convention is to secure legal certainty and, in particular, to make it possible to foresee which court will have jurisdiction. It is precisely that objective which awarding jurisdiction to the courts of the place of performance is intended to serve. In this case, however, there is more than one place of performance.
11. The Court of Justice, the Cour d'appel observes, has resolved similar problems, arising out of proceedings concerning contracts of employment, by defining the place of performance as the place where or from which the employee principally discharges his obligations towards his employer or the place where he has established the effective centre of his working activities.
12. In this case, it may be assumed that Belgium was the place where the parties in fact had the greatest interest in honouring their undertaking of exclusivity, since it was in Belgium that they were to prepare the joint tender.
VI - The questions referred for a preliminary ruling
13. The Cour d'appel therefore referred the following questions to the Court of Justice for a preliminary ruling:
Must Article 5(1) of the 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 and by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, be interpreted as meaning that a defendant domiciled in a Contracting State may, in another Contracting State, be sued, in matters relating to a contract, in the courts for any of the places of performance of the obligation in question, in particular where, consisting in an obligation not to do something - such as, in the present case, an undertaking to act exclusively with another party to a contract with a view to submitting a joint tender in connection with a public contract and not to enter into a commitment with another partner - that obligation is to be performed in any place whatever in the world?
If not, may that defendant be sued specifically in the courts for one of the places of performance of the obligation and, if so, by reference to what criterion must that place be determined?
VII - Legal appraisal
Submissions of the parties
14. Besix, the appellant in the main proceedings, WABAG and PLAFOG, the respondents in those proceedings, and the Commission, all base their submissions on the Court's case-law according to which, where Article 5(1) of the Brussels Convention is applied, it is always the specific obligation to be performed which has to be the criterion applied and not the whole of the contract.
15. WABAG and PLAFOG cite the judgment in Tessili, according to which it is for the court before which the matter is brought to determine in accordance with its own conflict rules the law applicable to the legal relationship in question and to define the place of performance in accordance with that law. According to the defendants, German law is the law applicable in the present case, and, under German law, the registered office of the party against whom enforcement is sought basically constitutes the place of performance. The outcome is the same if Belgian law is applied.
16. Only the undertaking of exclusivity is at issue here. The other obligations under the contract with Besix are immaterial for the purpose of determining jurisdiction. In its judgment in Leathertex, the Court actually acknowledged that this approach could result in a number of courts having jurisdiction, depending on which obligation was to be performed. As has already been stated, the place of performance of the undertaking of exclusivity is the registered office of the party against whom enforcement is sought.
17. Accepting that jurisdiction is vested in the Belgian courts would mean accepting in general that jurisdiction is vested to the courts first seised of the matter, without any attempt being made to establish a specific connection between the court and the contract at issue. In this case, the German courts are most closely connected with the contractual obligation at issue. The negotiations with the Finnish company POY were conducted in the offices of PLAFOG. Consequently, any breach of the undertaking of exclusivity took place there.
18. Besix also considers the undertaking of exclusivity to be the obligation that is decisive for the purpose of determining the place of performance. However, that obligation, it maintains, has no independent significance and is totally dependent on the principal contractual obligation to submit a joint tender. In support of its view, Besix cites the Shenavai judgment, according to which where action is being taken in relation to more than one obligation, ancillary obligations take second place to the principal obligation. The place of performance has therefore to be determined in the light of the principal obligation. Under the applicable Belgian law, that place is in Belgium.
19. Only in the alternative - should the Court consider the undertaking of exclusivity in isolation - does Besix concede that there was not just one place of performance of the undertaking of exclusivity; that undertaking was to be complied with in all the Member States. It follows that a choice has to be made in determining the court of the place of performance. In that connection, it is helpful to refer to the case-law relating to determination of the place of performance in the case of contracts of employment. If workers are active in a number of Member States, the Court focuses on the effective centre of their working activities. That is the place most closely connected to the dispute. In the present case also, Belgium is the place of performance.
20. That solution meets the objective underlying all special jurisdiction, regulated in Title II, Section 2, of the Brussels Convention. The purpose of special jurisdiction is to allow a matter to be brought before a court which has a particularly close connection with the dispute. In that way, too, of a multiplicity of courts having jurisdiction in respect of a contract is avoided, the risk of inconsistent judgments is reduced and recognition and enforcement of judgments is made simpler.
21. Like Besix, the Commission points out that, according to the judgment in Shenavai, where several obligations are pleaded simultaneously, ancillary obligations are secondary to the principal obligation. In this case, however, only one obligation is in dispute.
22. Again, according to the Commission, if the traditional interpretation of Article 5(1) of the Brussels Convention is applied to the present case, the result would be that in cases of this nature an action could be brought in every Member State. In the Court's view, however, the Brussels Convention is specifically intended to prevent this. It is therefore understandable that the national court should ask whether the Court's decision in relation to employment contracts can be transposed to the circumstances of this case. However, the Court has on several occasions refused to extend that case-law. Consequently, it is not possible, in this case, to identify a principal obligation which determines a place of performance for the whole contract.
23. Article 5(1) of the Brussels Convention can be interpreted in four different ways:
- applying the traditional interpretation, without taking account of the special features of a world-wide undertaking of exclusivity;
- as assigning place of performance to the registered office of the party against whom enforcement is sought;
- as assigning place of performance to the place where the breach of obligation occurred; or
- as assigning place of performance to the principal obligation, to which the undertaking of exclusivity constitutes an ancillary obligation.
24. The traditional interpretation would give rise to jurisdiction in all the Member States. It would, however, be incompatible with the aim of legal certainty, according to which a defendant should be able to foresee in which court he will be sued. Moreover, by its very nature, a world-wide undertaking of exclusivity cannot have a special connection with a particular legal system.
25. According to the referring court, it is not possible, under Belgian law, to consider the place of performance to be the registered office of the party against whom enforcement is sought in the case of a world-wide undertaking of exclusivity; consequently, that interpretation is not, in this instance, compatible with the judgment in GIE Groupe Concorde. (The Commission presumably means that this interpretation would not meet the aim of foreseeability either).
26. If the place of performance were considered to be the place where the undertaking of exclusivity was actually infringed, the determination of the place of performance would depend entirely on the party against whom enforcement is sought. However, the place of performance must be the outcome of the intention of both parties and be able to be foreseen by them when the contract is entered into.
27. The crux of the problem in this case is that, by its very nature, the undertaking of exclusivity cannot be identified with a particular location. Consequently, attempts to determine a place of performance also would not produce a satisfactory outcome. The proper solution is therefore to consider that obligation as merely ancillary to another obligation which can be identified with a particular location. That obligation is the obligation jointly to prepare a tender. The sole objective of the undertaking of exclusivity is to promote better cooperation. Without that cooperation, the undertaking of exclusivity would also be pointless.
28. The objection that the obligation to cooperate is not the subject-matter of the dispute does not preclude that solution. If an action for breach of both obligations were brought, then, according to Shenavai, only the court for the place of performance of the principal obligation would have jurisdiction.
Opinion
29. It should first be pointed out that, contrary to the view taken by WABAG and PLAFOG, the finding of the Court d'appel that Belgian and not German law has to be applied is not the subject-matter of these proceedings. Article 5(1) of the Brussels Convention, which has to be interpreted in this case, contains no rules on the choice of the law to be applied.
30. In keeping with the objectives of the Brussels Convention, Article 5(1) must be interpreted so as to avoid, so far as possible, creating a situation in which a number of courts had jurisdiction in respect of one and the same contract. If, however, the national court is right in finding that the claim in this case is forwarded on an obligation to refrain from doing something, and that, under the applicable Belgian law, the whole world has to be seen as the place of performance of that obligation, then, under Article 5(1) of the Brussels Convention, all courts with jurisdiction in such a matter, in all of the Member States, would have jurisdiction.
31. It is therefore necessary to consider whether Article 5(1) of the Brussels Convention is amenable to an interpretation which precludes that outcome. The referring court, Besix and the Commission propose that the concept of the place of performance should be determined in the light of the principal contractual obligation. In this case, the principal obligation is to prepare and submit a tender.
A - The case-law on determination of the place of performance
32. In determining, in this case, the place of performance, within the meaning of Article 5(1) of the Brussels Convention, it is solely the obligation which forms the subject-matter of the dispute that has to be taken into account, and not the whole contract. That alone explains why jurisdiction in a dispute involving two obligations arising out of the same contract can be vested in two different courts. That principle in itself precludes, from the point of view of Community law, subsuming individual contractual obligations under a principal obligation.
33. It is settled case-law that the place of performance of that contractual obligation is, moreover, to be determined by the law governing that obligation according to the conflict rules of the court seised. What is concerned, therefore, is not a concept of Community law which is uniform and autonomous and has a uniform meaning to be determined by the Court for the whole Community, but merely a reference to provisions of national law. These are the provisions which are to be applied to the contract in point - the lex causae. In purely national disputes - to which the Brussels Convention does not apply - the lex causae is the applicable national law. In disputes concerning contracts with cross-border implications, however, there may be a degree of conflict between the different national legal systems which could apply - in this case German and Belgian law. In cases of this kind, it is necessary to examine expressly the question as to which legal system the contract in question is subject. If, as in this case, the contract contains no effective provision as to the national law applicable (choice of law), the court seised determines the law applicable according to its own conflict rules. According to the national court, the Belgian conflict rules to be applied in this case provide that the law of the country with which the contract has the closest connection applies. In this case, both the Cour d'appel and the court of first instance are of the view that that country is Belgium, and they are therefore applying Belgian law. Since it is not for the Court of Justice to interpret the provisions of national law, it is unable, on the basis of that case-law, to provide the national court with any guidance on the interpretation of the concept of the place of performance.
34. A limitation was, however, placed on that case-law: In the case of contracts of employment, the Court has ruled that the place of performance of the relevant obligation should be determined by reference, not to the applicable national law in accordance with the conflict rules of the court seised, but to uniform criteria which it is for the Court to lay down on the basis of the scheme and objectives of the Brussels Convention ... These criteria lead to the choice of the place where the employee actually performs the work covered by the contract with his employer.
35. The Court, however, has so far declined to extend to other categories of cases the concept of a uniform and autonomous interpretation of the concept of the place of performance, even though, with reference to the objective of Article 5(1) of the Brussels Convention - namely jurisdiction of a court which is particularly closely connected with the case - a number of Advocates General have put forward other solutions.
36. In Shenavai, the Court was asked to consider whether jurisdiction in respect of payment of architect's fees should be determined by reference to the place where the buildings were to be erected or the place at which the claim for fees was made. The latter solution followed from the principle that, in determining jurisdiction at the place of performance, it is the contractual obligation at issue which must be taken into account. In that case, the national court and United Kingdom Government suggested, however, that, as in the case of disputes involving employment law, the obligation characterising the contract should be the criterion applied for determining the place of performance. However, the Court emphasised that contracts of employment create a lasting bond which brings the employee within the organisational framework of the employer's business, a framework which, in its turn, normally provides a territorial point of reference. It was therefore possible to use the obligation characterising the contract as the criterion even where other contractual obligations arising out of the contract of employment were in dispute. That did not, however, apply to other contracts, including architects' contracts.
37. In Custom Made Commercial, the Court had to consider whether the lex causae also applies if the contract at issue has to be assessed in the light of the Uniform Law on the International Sale of Goods. Under the Uniform Law, the creditor's domicile would, in principle, be the place of performance in respect of the demand for payment.
38. Advocate General Lenz took the opportunity to analyse the case-law as it then stood and came to the conclusion that while the Court's preferred solution was to determine the place of performance in accordance with the lex causae, it took a different approach where that solution was clearly not compatible with the objectives of Article 5(1) of the Brussels Convention. He also noted that the choice of obligation to be used as the criterion for determining the place of performance was of crucial importance for determining the place of performance. Finally, the Advocate General considered that the automatic reference, under the Uniform Law, to the creditor's domicile would not result in jurisdiction being conferred on the courts most closely connected with the dispute. He explained this on the basis that determining the place of performance on the basis of substantive law pursued objectives other than those pursued by use of the place of performance to establish the jurisdiction of a court closely connected to the case. He therefore proposed that, in the case of contracts of sale, the place of performance should, in principle, be the place where the seller is to supply the goods.
39. The Court, however, stressed that while Article 5(1) of the Brussels Convention is based on the assumption that the closest links between the dispute and the competent court are usually to be found at the place of performance of the contractual obligation, none the less the decisive factor is that the criterion of the place of performance should be able to be precisely and clearly determined. The legal certainty thus achieved would be jeopardised were the criterion of the place of performance modified in cases in which it would not have the effect of conferring jurisdiction on the court most closely connected with the dispute.
40. In January 1999, the Court had once again to consider, in two cases, whether it needed to abandon or least modify its case-law on determination of the place of performance.
41. Leathertex concerned two equal-ranking obligations to pay arising out of a commercial agency agreement, which were to be performed in different places. Advocate General Léger concluded that reference to the lex causae would afford no greater legal certainty than an autonomous interpretation, whereas, over time at least, autonomous determination of the place of performance for the different types of obligation would cover most conceivable cases, since these would gradually be referred to the Court for a preliminary ruling. He suggested that in the case of obligations to pay, the criterion applied should be the place for the supply of the consideration to be provided under the contract. In the case of a commercial agency agreement, the place of performance of the actual service should be determined by reference to the geographical delimitation which has inevitably to be established in that agreement for the agency mandate and, where necessary, by determining main centre of activity. In that way, exclusive jurisdiction at the place of performance would be established in relation to all claims arising out of a commercial agency agreement.
42. Gie Groupe Concorde, finally, concerned a claim for damages against a shipping company and a ship's captain in relation to a cargo carried between Le Havre (France) and Santos (Brazil). Advocate General Ruiz-Jarabo set out, first in abstract terms, and then with reference to the main proceedings, the considerable difficulties with which a court is faced in applying the existing case-law of the Court of Justice on determination of the place of performance. At a practical level, therefore, according to the Advocate General, the place of performance is frequently determined not in accordance with the lex causae but, because it is easier to administer pursuant to the law of the court seised, the lex fori. On that basis, the Advocate General concluded that the approach taken by the Court of Justice afforded no greater legal certainty than an autonomous interpretation, under Community law, of the concept of place of performance. Nor is jurisdiction of a court closely connected with the dispute assured in that way. He therefore proposed that the place of performance be determined in the light of the particular circumstances of the individual case in conjunction with the relevant obligation of payment.
43. The Court, however, again stressed, in this case too, the need to safeguard legal certainty. It further pointed out that the substantive law, to which Article 5(1) of the Brussels Convention refers, and the intention of the parties are generally more suitable for the purpose of determining a place of performance than is an abstract and autonomous interpretation by the Court.
44. The Court consequently held that:
It is for the national legislature, which has exclusive competence in this field, to define a place of performance which takes fairly into account both the interest of sound administration of justice and the interests of adequate protection for individuals. It may well be that in so far as national law allows, the national court will have to determine the place of performance by reference to the criteria suggested by the referring court - i.e. by identifying, by reference to the obligations undertaken and the circumstances of the case, the place where the thing or service contracted for was, or should have been, provided.
45. In Leathertex, the Court refrained from restating that case-law, but declined to allow a common jurisdiction for actions relating to obligations of equal rank which are to be performed in different places.
46. It therefore follows from that case-law that, as Community law now stands, it is for the national legislature to lay down rules governing the place of performance of contractual obligations and for the national courts to interpret and apply those rules.
47. Nor would the Convention on the law applicable to contractual obligations, which is not applicable in this case, produce a different outcome. Although the Convention makes it easier to identify the lex causae, Article 10(1)(b) thereof specifically leaves it to the lex causae to determine the place of performance.
48. Finally, it is also not possible to derive from the recently adopted Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the enforcement of judgments in civil and commercial matters an argument for interpreting Article 5(1) of the Brussels Convention differently. Article (5)(1)(b) of the regulation does set out explicit rules governing the place of performance of sales contracts - the place for delivery of the goods - and contracts for the provision of services - the place for the provision of the services. But it is impossible to find anything to suggest that the Court should determine a place of performance in the present case. In terms of its temporal scope alone, the regulation is not applicable because it enters into force only in relation to actions brought after 1 March 2002. Nor does the obligation in this case substantively fall within any of the categories of place of performance expressly regulated. It is neither a contract of sale nor a contract for the provision of services. Consequently, the regulation does not define a place of performance in relation to the claims in this case. There is therefore also no reason to apply it by analogy.
49. Consequently, it must be concluded, in relation to the circumstances of this case, too, that the place of performance is to be determined in accordance with the law applicable to the obligation at issue under the conflict rules of the court seised (lex causae).
B - Interpretation of the lex causae
50. In principle, it is not for the Court of Justice - or the Advocate General - to analyse the lex causae. It should, however, be pointed out that when applying domestic law the national court must, as far as is at all possible, interpret it in a way which accords with the requirements of Community law.
51. If the lex causae does not provide clear guidance, and the national court is, consequently, left with a margin of discretion, that court must, in interpreting that law, take account of Community law. Particular attention must be paid here to the objective of Article 5(1) of the Brussels Convention, namely to establish uniform jurisdiction which is closely connected with the dispute.
52. Allow me to make two brief comments here on the application of the abovementioned considerations to the present dispute.
53. On the one hand, the national court will certainly seek to establish whether a comparable question regarding the place of performance in relation to obligations to refrain from doing something has already been the subject-matter of proceedings which had to be decided solely in accordance with national law. The approach adopted in those proceedings should be transposed to the present case.
54. On the other hand, it would have to be considered whether, under the contract at issue in this case, the place of performance ought not to be sought at the place where the tender, which formed the subject-matter of the contract, was to be submitted. Competition was possible only if a competing tender was submitted at that place. If the place of submission of the tender was in Cameroon, then under this approach the application of Article 5(1) of the Brussels Convention would be precluded, since Cameroon is outside the European Union. The court having jurisdiction in that event would be that of the defendant's domicile under Article 2 of the Brussels Convention.
C - Limiting the scope of Article 5(1) of the Brussels Convention
55. Should the national court take the view that none of the approaches discussed above is permissible under Belgian law, with the result that no single place of performance can be determined, the question would, finally, arise as to whether Article 5(1) of the Brussels Convention can apply at all.
56. In that connection, consideration would have to be given to applying, by analogy, the case-law on jurisdiction in relation to claims in tort or delict under Article 5(3) of the Brussels Convention. In that context, the Court has held that, as regards the concept of the place at which the harmful event occurred, a victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised.
57. Construing Article 5(1) of the Brussels Convention in that way would, however, lead to the unsatisfactory outcome that in cases like the present one there would be a multiplicity of courts having jurisdiction.
58. A multiplicity of competent courts would be precluded were this Court to restrict the application of Article 5(1) to those cases in which application of the lex causae results in a single court having jurisdiction in relation to the obligation at issue.
59. The Court has already declared itself in favour of construing the jurisdictional rules under Article 5 of the Brussels Convention narrowly as derogations from the general jurisdiction of the defendant's domicile under Article 2 of the Convention.
60. Advocate General Léger also gave consideration in his Opinion in Leathertex to the view that Article 5(1) of the Brussels Convention cannot apply if its application is incompatible with the objectives of the Convention. I have to agree with him when he states 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 a 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. Article 5(1) does not provide for its scope to be restricted in that way.
61. In this case, however, it is clear not only from the objectives of the Convention but also from the text of Article 5(1) in all of the applicable language versions, that the forum of the place of performance refers to a single place. The reference is always to a single place and not several places.
62. Consequently, an interpretation which adheres closely to the wording is consonant with the objectives of the Convention in this case. Were a contractual obligation to relate to several places of performance simultaneously, the parties would no longer be able to foresee before which court they might be sued. Furthermore, jurisdiction would inevitably be awarded to courts which could no longer be considered to be closely connected to the case.
63. It follows that application of Article 5(1) of the Convention is precluded where under the law applicable in accordance with the conflict rules of the court seised there is no single place of performance but a choice of several places of performance of equal rank.
VIII - Conclusion
64. I therefore propose that the Court give the following answer to the question referred to it for a preliminary ruling:
(1) In applying Article 5(1) of the 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 (Brussels Convention), the place of performance must be determined in accordance with the law applicable to the obligation at issue under the conflict rules of the court seised.
(2) So far as is possible, the national court must interpret the provisions on the place of performance which are applicable in accordance with the preceding paragraph in a way which accords with the requirements of Community law and, in particular, with the objectives of the Brussels Convention - in this case with the objective of determining a single competent court which is closely connected to the dispute.
(3) Article 5(1) of the Convention cannot apply if, under the law applicable to the obligation at issue under the conflict rules of the court seised, there is no single place of performance but a choice of several places of performance of equal rank.