3.

Those guidelines could lead to the result, and obviously we do not have to decide that now. that in the case at issue in the mam proceedings a place of performance in France and thus lunsdiction of the French courts is to be assumed as regards the claims which have been brought. As we know, the plaintiff is essentially claiming that the defendant be ordered to pay commission, compensation for failure to give notice and for goodwill, conceived as compensation for the unjustified termination of the contract. What is at issue, therefore, is partly performance of the contract (payment of commission, settlement of an “internal account” through which sums collected and claims of the plaintiff were to be taken into account) and partly claims for nonperformance (holiday allowance, compensation for failure to give notice and for unwarranted unilateral termination of the contract). As regards the first-mentioned matters it is possible to gain the impression, in view of what has been submitted, that they are to be complied with in France, at least if it is assumed that the contract is one of employment. In that respect I would refer to the plaintiff's observations, which he supported with references to the case-law, to the effect that according to French law payments of salary are to be made at the place in which the work is done, that, furthermore, emoluments to travellers are to be paid at their residence and that in such cases where there is an obligation to pay by cheque or bank transfer that likewise generally means performance at the place of residence of the employee. The same should apply to the claims for nonperformance (damages for termination of the contract and compensation for failure to give notice) since they are based on the defendant's obligation not to disturb the plaintiff in the performance of his work and thus obviously only one place of performance can becontemplated, namely in the area in which the plaintiff should do his work. In that respect reference may be made to the abovementioned article by Vander Elst and the case-law of Belgian courts CCour d'Appel, Mons, judgment of 3 May 1974, Cour de Cassation, judgment of 6 April 1978, Cour d'Appel, Liège, judgment of 12 May 1977, printed in the Digest of Case-law Relating to the European Communities, Series D, Article 5 of the Convention of 27 September 1968). If that is so, and the national court has in the end to decide that, as well as to adjudicate upon the defendant's objections to the effect that the plaintiff insisted on the application of the terms of payment applied to German representatives and the payment of his remuneration in German marks, it would in fact to some extent be consistent with the judgment, cited by the Commission, of the Cour d'Appel, Angers, of 29 January 1980 in a similar case. That can be said to be so at least in so far as the judgment proceeds on the basis that the relevant obligations in regard to payment replace the obligations in the contract which have not been performed and that as regards the claims for compensation for failure to give notice and for goodwill acquired, these are claims for the breach of the obligation to continue to perform the contract. On the other hand the view, which is also to be found in the judgment, to the effect that the claims for commission and holiday allowance are based on the nonperformance of obligations which are to be treated as consideration for work done and that therefore in the case of those obligations the place of performance is that where the work is carried out, must be queried in view of the previous case-law of this Court. The result which I have indicated would further be in conformity with the desire expressed in the Jenard Report to recognize the venue of the place of performance as being in the country whose law governs the contract at issue.