1.

The first question to which I must turn relates to the interpretation of Article 5 (1) of the Convention, that is the provision which provides for the jurisdiction of the place of performance for the enforcement of contractual rights. A problem arises here in so far as, where a national court, examining its jurisdiction on the basis of this provision and in view of the fact that substantive law including international private law in the Community has — still — not been harmonized, has to determine, according to its own private international law, the law which is applicable to the legal situation concerned and then has to ascertain, on the basis of this law, where the obligations in question are to be performed. If this produces several places of performance then under the Convention the question arises whether they are all equally important or whether the abovementioned provision is to be so interpreted as to leave some places of performance out of account. After all the observations submitted in this respect in the course of the proceedings I have no doubt that the Commission is correct in stating that the ‘performance of the obligation’ arising out of a contract, mentioned in Article 5, has to a certain extent an independent meaning, a Community law meaning as it were, and that national law alone is not decisive in this respect. In principle it may be assumed that terms used in such agreements which are of significance for the life of the Community — the Convention on jurisdiction and enforcement of Judgments concerns the facilitation of legal proceedings — have a meaning for the purposes of Community law at least in so far as there exists no clear and unambiguous reference to national law as, for example, in Article 52 in respect of the concept of domicile. It is particularly important for the Convention on jurisdiction and the enforcement of Judgments that a uniform system of jurisdiction is created. Its provisions must be observed by national courts and, with a few exceptions, once jurisdiction has been accepted there is in principle no occasion for reopening the matter. This is evident from the abovementioned Report. However it may be said that fundamental autonomous concepts are a necessary precondition for the definition of common rules of jurisdiction. It is further relevant that the Convention is based on the attempt not to have duplication of jurisdiction except where this is necessary. In this respect it is inter alia characteristic that the place where the contract was concluded is not taken into consideration. However as the court seised of the matter rules as to the law applicable and as, apart from a few exceptions, the matter is subsequently no longer open to dispute, the danger of duplication of jurisdiction cannot be entirely ruled out where the national law alone is decisive, as is illustrated by the present case. Even if it is going too far to say the place of performance results from the Convention itself there is no support for such an extensive incursion into national law and moreover in the absence of further details this would entail the danger of considerable legal uncertainty — nevertheless in view of the abovementioned factors there remains the consideration that places of performance which may be determined in relation to a particular legal situation on the basis of national law are not necessarily decisive for the application of the Convention. If, on the basis of the principles that we have deduced, we examine the different aspects of the question before us as formulated with regard to the factual situation in the main action, then a further consideration may be deduced without any particular difficulties. Article 5 (1) of the Convention is certainly not to be understood as meaning that one place of performance applies in respect of a whole contractual relationship, in particular for such a complex relationship as that of an exclusive dealing agreement in the context of which are included numerous individual contracts of sale. In view of the customary method of determining jurisdiction of the place of performance in legal systems which already used the concept, the contrary assumption must appear quite unacceptable. It is also clear that Article 5 (1) refers to the obligation which is the object of the dispute. This is expressed in the abovementioned Report, which was submitted together with the draft Convention to the Governments, in which reliance is placed on the obligation on which the claim is based (klagebegründende Verpflichtung). This view is supported by numerous authors such as Martha Waser in ‘Convention Communautaire sur la competence judiciaire et l'exécution des decisions’ (page 248). She draws clear support from the German and Italian texts of the Convention. Furthermore an appropriate amendment of the French and Dutch texts is provided for in the context of the work in respect of the accession of the new Member States of the Convention. This is evident, having regard to the intentions of the authors of the Convention, from a report of the working party of the Council of 20 November 1975 which was submitted by the Commission. In the case of synallagmatic contracts Article 5 (1) of the Convention provides, according to the obligation at issue, a different jurisdiction as the place of performance differs. Therefore in exclusive dealing agreements it is natural that the obligations of the grantor and those of the grantee must be kept apart and that for the enforcement of claims for breach of contract by the grantor, the individual contracts of sale which were undertaken within the context of the agreement must be left out of consideration because of their legal independence. It is not quite so simple to resolve what may be regarded as the central problem of the main action, that is the question whether rights against the grantor for breach of an exclusive dealing agreement must also be regarded separately in so far as they are not regarded as contractual obligations under national law or whether, irrespective of the fact that they are provided for by law, the place of performance of the principal obligation is decisive as this is the basis of the claim and as the action fundamentally concerns the improper performance of them. In this respect it is possible to opt for a strict interpretation of the text of Article 5 (1) and to take the view that since reference is made to rights arising out of a contract, it does not apply to legal obligations which have arisen in the case of failure to perform contractual obligations. Finally however it must be admitted that there are stronger arguments in support of the view of the Commission which advocates a broader interpretation. Therefore the principle of concentration of jurisdiction applies in relation to the Convention the intention being to avoid as far as possible conflicting decisions in the various Contracting States. This interpretation is clearly evidenced by the abovementioned Report. In this respect reference may also be made to Article 21 by virtue of which, in cases where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion decline jurisdiction in favour of the first court. This is also supported by Article 22 which provides, in cases where related actions are brought in the courts of different Contracting States, that a court other than the court first seised may, while the actions are pending at first instance, stay its proceedings. For the purposes of that 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’. Any other interpretation which might lead to division of jurisdiction would fail to take account of the principle of good administration of justice and would therefore appear rather strange in the context of an agreement the purpose of which is to ensure effective pursuit of legal actions. The main action in the present case shows that such an interpretation would give rise to considerable problems; the jurisdiction of the Belgian courts would have to be recognized for the application for judicial dissolution of the contractual relations as this is clearly dependent on the principal obligation of the grantor and thus leads to a place of performance in Belgium. However if, in respect of the claim for damages, which depends on the decision as to the dissolution of the contractual relations, any other qualification were made, the place of performance would have to be taken to be in France and the French courts would therefore have jurisdiction. Finally it is also relevant — we need not here decide whether it is decisive — that if the solution advocated by the Commission is adopted the result is that the competent court of the place of performance is in the territory of the State the law of which is applicable to the disputed situation — a result which was expressly declared to be desirable in the abovementioned Report. This is not only evident from Belgian private international law but it is also apparent from the appropriate rules as to conflict of laws of most of the Member States whereby matters depend on the sphere of operations of the grantee. In addition this is also contained in the proposed Convention on the law applicable to contractual and non-contractual obligations; Article 4 of a draft text already prepared provides that — except where the parties have agreed otherwise — the contract is to be governed by the law of the country with which it is most closely connected. Thus in answer to the first question referred for a preliminary ruling it should be stated that the application of Article 5 (1) of the Convention on jurisdiction is dependent on the contractual obligation which is the basis of the dispute and that in the case of disputes concerning the consequences of the breach of an exclusive dealing agreement by the grantee, the main obligation of the grantee forms the subject of the proceedings even if the consequences of the breach of this obligation are prescribed by law.