5.

In almost all the legal systems of the Member States the relationships between an association and its members are recognized as being contractual in nature. Under Belgian, French, Italian, Danish and English law and under the law of Scotland contractual status attaches either to the act of becoming a member of the organization or to the rights and obligations resulting from membership. For example, according to French legal literature the creation of an association depends on the intention of the parties and in French case-law the relationships between an association and its members are considered to be “contractual”. The Italian system follows the same line. Article 1420 of the Civil Code provides that the participation of more than two persons in an agreement (as in the case of an association's documents of constitution) is a genuine contract, even if “the contributions of each [member] are directed towards the achievement of a common aim”. As regards the obligations laid upon the members as the result of their belonging to an association, the Italian Cone di Cassazione [Court of Cassation] has held that the act which creates the bond between a member and an association brings about the same situation as that which normally exists under bilateral contracts; the association may therefore apply to the courts under Article 1453 of the Civil Code (on the dissolution of commutative contracts on grounds of nonperformance) for the expulsion of those members who fail to fulfil their obligations (Court of Cassation, 2 March 1973, No 579). English law adopts the same position with reference both to an association's documents of constitution and to the obligations laid upon the members as the result of their belonging to that association. I would mention in this respect the case of Lee v Showmen's Guild of Great Britain [1952] 2 QB, 329, 341 in which Lord Denning emphasized the contractual nature of the relationship between a member and an association in order to show that the jurisdiction of the court was not restricted to the protection of proprietary rights. As regards the German system, the courts and academic writers agree that the act by which a person becomes a member of an association is to be regarded as contractual. However, their views differ as to the relations which exist after membership has been acquired. The case-law seems to suggest that such relations are covered by the “institutional law” of the organization, whilst in legal literature the opinion of writers is divided, in the sense that some writers accept the contractual theory and others support the institutional theory. Finally, in the Netherlands under the new Civil Code the act by which an association is formed is regarded as a multilateral legal transaction sui generis and the relations which derive from membership of the association are similarly sui generis (or based on the institutional concept). It follows from the abovementioned factors, in brief, that with the exception of the Netherlands system, all the national legal systems consider the act by which an association is created to be a contract in the strict sense. A similar approach seems to be taken as regards the relationships which arise between the organization and its members as the result of membership. Apart from the so-called institutional theory for which the new Netherlands Civil Code and the case-law of the Federal Republic of Germany have opted (although I would recall that in German legal literature opinion is divided on the subject), under all the other systems these relationships are considered to be of a contractual nature. The Commission's representative drew attention to that situation in his written observations of 26 March 1982 (in particular, paragraph 6, p. 21). From this it is but a short step to saying that the prevailing tendency of the legal systems of Community States is to consider that both the act by which an association is created and the relationships between the members and the association are governed by the law of contract. In the present case that step is important for the purposes of my conclusion, namely that the obligations which directly or indirectly bind the members of an association are included in the concept of “matters relating to a contract” within the meaning of Article 5 (1) of the Brussels Convention. The correctness of that interpretation is moreover fully confirmed by reference to the objectives and the scheme of the Convention.