2.

I make the observation first of all that the issue has to be considered upon the hypothesis that two parties to a contract have concluded an oral agreement concerning the place of performance of the obligation which later forms the subject of dispute; it is not necessary to know whether, in this case, the hypothesis matches the true facts. For what it is worth, the plaintiff in the main proceedings maintained that there was also agreed, at the time, an oral agreement conferring jurisdiction, but that remains outside our purview. In the view of the German courts of first and second instance, clauses conferring jurisdiction and those relating to the place of performance must be subjected to the same rules of form before the latter clauses may have a bearing on the issue of jurisdiction. But, in truth, the issue concerns two wholly different types of agreement: the one has a purely procedural purpose, the other a substantive purpose accompanied by a procedural result arising, independently of any specific intention of the parties, from the provisions of Article 5 (1). Further, agreements conferring jurisdiction give exclusive jurisdiction to the court or courts specified, with the consequence that they suspend the operation of both the general rule on jurisdiction (Article 2) and the rules relating to special jurisdiction (Article 5); whereas the place of performance, however determined, is the basis of a special jurisdiction which is concurrent with the general jurisdiction and any other equally special jurisdictions. Finally, jurisdiction settled upon pursuant to Article 17 leaves out of account any objective factor connecting the legal relationship in dispute and the chosen tribunal whereas jurisdiction based on Article 5 (1) is really warranted by the objective link which exists between an important aspect of the contract and the court recognized as having jurisdiction. On a purely exegetical level, it has to be said that Article 17, in referring to agreements whereby the parties have “agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connexion with a particular legal relationship”, precisely describes their particular content, clearly distinguishing them from agreements which settle the place at which performance must take place. In turn, Article 5 (1) contains nothing which would lead one to hold that it has in contemplation only the place of performance of the contractual obligation fixed ex lege and excludes a place agreed upon for that purpose by the parties in the exercise of the freedom of contract recognized by law. In regard to the manner in which the criterion for jurisdiction laid down in Article 5 (1) is to be interpreted, reference has properly been made in the course of the present proceedings to the Judgment of the Court of 6 October 1976 in Case 12/76 Tessili v Dunlop [1976] ECR 1474. That judgment laid down that it was for the national court to determine, in accordance with its own rules of conflict of laws, the law governing the legal relationship in question and accordingly to determine, on the basis of that law, the place of performance of the contractual obligation in question. If, therefore, the law which is applicable gives to the contracting parties power to determine the place in which the obligation to be concluded is to be performed, without imposing any special requirements of form, the choice freely arrived at by the parties will be binding both for the purposes of the law governing the substantive elements of the contract and for the purposes of Article 5 (1) of the Convention of Brussels. To separate the one consequence from the other would mean holding that, although the contract was to be performed in the place fixed by the parties, the jurisdiction of the courts of that place could nevertheless not be recognized; but that would strike against both the letter and the spirit of the provision which has been cited and which, as I have already mentioned, reflects the idea that the location of the contract during the phase of its performance is sufficient to found jurisdiction in that same place. A further support for the view which I have just set forth is provided by the argument which the Commission properly drew from Article I of the Protocol annexed to the Convention of Brussels. In the first paragraph of that article it is provided that any person domiciled in Luxembourg who is sued in a court of another Contracting State pursuant to Article 5 (1) may refuse to submit to the jurisdiction of that court; if the defendant does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction. In the second paragraph, a rule, also making an exception in favour of persons domiciled in Luxembourg, is drawn up in regard to Article 17, it being there laid down that agreements conferring jurisdiction shall be valid with respect to such persons only if they are expressly and specifically agreed. The manner in which the aforesaid two provisions are formulated and set out evidently implies that the system applying to the court of the place of performance and that applying to the selected court are two quite distinct things.