Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA.
Date: 1999-03-16
13 In Case 24/76 Estasis Salotti v RÜWA [1976] ECR 1831, paragraph 9, the Court of Justice held that, whilst the mere fact that a clause conferring jurisdiction is printed on the reverse of a contract drawn up on the commercial paper of one of the parties does not of itself satisfy the requirements of Article 17, it is otherwise where the text of the contract signed by both parties itself contains an express reference to general conditions which include a clause conferring jurisdiction.
14 Further, under the division of responsibilities in the preliminary ruling procedure laid down by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention, it is for the national court alone to define the subject-matter of the questions which it proposes to refer to the Court. According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Cases C-220/95 Van den Boogaard v Laumen [1997] ECR I-1147, paragraph 16, and C-295/95 Farrell v Long [1997] ECR I-1683, paragraph 11).
18 In its original version, Article 17 made the validity of a jurisdiction clause subject to the existence of an agreement in writing or an oral agreement evidenced in writing. It was in order to take account of the specific practices and requirements of international trade that the Accession Convention of 9 October 1978 added to the second sentence of the first paragraph of Article 17 a third case providing that, in international trade or commerce, a jurisdiction clause may be validly concluded in a form which accords with usages in that trade or commerce of which the parties are, or ought to have been, aware (Case C-106/95 MSG v Gravières Rhénanes [1997] ECR I-911, paragraph 16).
19 At paragraph 17 of MSG, the Court held that, in spite of the flexibility introduced into Article 17, the provision's aim was still to ensure that there was real consent on the part of the persons concerned so as to protect the weaker party to the contract by avoiding jurisdiction clauses, incorporated in a contract by one party, going unnoticed.
20 The Court went on to state, however, that the amendment made to Article 17 makes it possible to presume that such consent exists where commercial usages of which the parties are or ought to have been aware exist in this regard in the relevant branch of international trade or commerce (MSG, paragraphs 19 and 20).
21 The answer to the first question must therefore be that the third case mentioned in the second sentence of the first paragraph of Article 17 of the Convention is to be interpreted as meaning that the contracting parties' consent to the jurisdiction clause is presumed to exist where their conduct is consistent with a usage which governs the area of international trade or commerce in which they operate and of which they are, or ought to have been, aware.
The ninth, fourth, fifth and eighth questions: usage in international trade or commerce
23 At paragraph 21 of MSG, the Court stated that it is for the national court to determine, first, whether the contract in question is one forming part of international trade or commerce and, second, whether there is a usage in the branch of international trade or commerce in which the parties operate.
25 As to the second point, the Court explained in MSG, at paragraph 23, that whether a usage exists is not to be determined by reference to the law of one of the Contracting Parties or in relation to international trade or commerce in general, but in relation to the branch of trade or commerce in which the parties to the contract operate.
26 It went on to hold in the same paragraph that there is a usage in the branch of trade or commerce in question where in particular a certain course of conduct is generally and regularly followed by operators in that branch when concluding contracts of a particular type.
27 It follows that it is not necessary for such a course of conduct to be established in specific countries or, in particular, in all the Contracting States. The fact that a practice is generally and regularly observed by operators in the countries which play a prominent role in the branch of international trade or commerce in question can be evidence which helps to prove that a usage exists. The determining factor remains, however, whether the course of conduct in question is generally and regularly followed by operators in the branch of international trade in which the parties to the contract operate.
28 Since Article 17 of the Convention does not contain any reference to forms of publicity, it must be held, as the Advocate General considered at point 152 of his Opinion, that, although any publicity which might be given in associations or specialised bodies to the standard forms on which a jurisdiction clause appears may help to prove that a practice is generally and regularly followed, such publicity cannot be a requirement for establishing the existence of a usage.
29 A course of conduct satisfying the conditions indicative of a usage does not cease to be a usage because it is challenged before the courts, whatever the extent of the challenges, provided that it still continues to be generally and regularly followed in the trade with which the type of contract in question is concerned. Therefore, the fact that numerous shippers and/or endorsees of bills of lading have challenged the validity of a jurisdiction clause by bringing actions before courts other than those designated would not cause the incorporation of that clause in those documents to cease to constitute a usage, as long as it is established that it amounts to a usage which is generally and regularly followed.
34 As the Court held in Case 150/80 Elefanten Schuh v Jacqmain [1981] ECR 1671, paragraph 25, Article 17 is intended to lay down itself the conditions as to form which jurisdiction clauses must meet, so as to ensure legal certainty and to ensure that the parties have given their consent.
37 In Elefanten Schuh, at paragraph 26, the Court stated that Contracting States are not at liberty to lay down formal requirements other than those laid down in the Convention.
41 As to the first point, the Court of Justice held in Tilly Russ, at paragraph 24, that, in so far as a jurisdiction clause incorporated in a bill of lading is valid under Article 17 of the Convention as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper's rights and obligations.
42 Since the validity of the clause under Article 17 must be assessed by reference to the relationship between the original parties, it follows that it is those parties whose awareness of the usage must be assessed, the parties' nationality being irrelevant for the purposes of that investigation.
43 As to the second point, it is clear from paragraph 24 of MSG that actual or presumed awareness of a usage on the part of the parties to a contract can be made out, in particular, by showing either that the parties had previously had commercial or trade relations between themselves or with other parties operating in the sector in question, or that, in that sector, a particular course of conduct is sufficiently well known because it is generally and regularly followed when a particular type of contract is concluded, so that it may be regarded as being an established usage.
47 In that regard, it should be recalled that the Convention does not affect rules of substantive law (Case 25/79 Sanicentral v Collin [1979] ECR 3423, paragraph 5), but has the aim of establishing uniform rules of international jurisdiction (Case C-269/95 Benincasa v Dentalkit [1997] ECR I-3767, paragraph 25).
48 As the Court has repeatedly stated, it is in keeping with the spirit of certainty, which constitutes one of the aims of the Convention, that the national court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case (Cases 34/82 Peters v ZNAV [1983] ECR 987, paragraph 17; C-288/92 Custom Made Commercial v Stawa Metallbau [1994] ECR I-2913, paragraph 20; and Benincasa, paragraph 27). In Benincasa, at paragraphs 28 and 29, the Court explained that the aim of securing legal certainty by making it possible reliably to foresee which court will have jurisdiction has been interpreted, in connection with Article 17 of the Convention, by fixing strict conditions as to form, since the purpose of that provision is to designate, clearly and precisely, a court in a Contracting State which is to have exclusive jurisdiction in accordance with the consensus between the parties.
50 It is for those reasons that the Court has repeatedly held that Article 17 of the Convention dispenses with any objective connection between the relationship in dispute and the court designated (Case 56/79 Zelger v Salinitri [1980] ECR 89, paragraph 4; MSG, paragraph 34; and Benincasa, paragraph 28).
51 For the same reasons, in a situation such as that in the main proceedings, any further review of the validity of the clause and of the intention of the party which inserted it must be excluded and substantive rules of liability applicable in the chosen court must not affect the validity of the jurisdiction clause.