GIE Groupe Concorde and Othes v The Master of the vessel "Suhadiwarno Panjan" and Others.
Date: 1999-09-28
11 As far as possible, the Court of Justice gives the terms used in the Brussels Convention an autonomous interpretation, rather than by reference to national law, so as to ensure that the Convention is fully effective, having regard to the objectives of Article 220 of the EC Treaty (now Article 293 EC), in the implementation of which the Convention was adopted (Case C-125/92 Mulox IBC v Geels [1993] ECR I-4075, paragraph 10).
12 The Court has, however, made it clear that neither option excludes the other, since the appropriate choice can be made only in relation to each of the provisions of the Brussels Convention (Tessili, paragraph 11, and Case 144/86 Gubisch Maschinenfabrik v Palumbo [1987] ECR 4861, paragraph 7).
13 As regards the expression `place of performance of the obligation in question', the Court has repeatedly ruled that this expression is to be interpreted as referring to the law which governs the obligation in question according to the conflict rules of the court seised (Tessili, paragraph 13, and Custom Made Commercial, paragraph 26).
14 It is true that, in the case of contracts of employment, the Court has ruled that the place of performance of the relevant obligation should be determined by reference, not to the applicable national law in accordance with the conflict rules of the court seised, but to uniform criteria which it is for the Court to lay down on the basis of the scheme and the objectives of the Brussels Convention (Mulox IBC, paragraph 16).  These criteria lead to the choice of the place where the employee actually performs the work covered by the contract with his employer (Mulox IBC, paragraph 20).
17 It should be noted that in paragraph 14 of Tessili the Court, in explaining its reasons for determining the place of performance of contractual obligations by reference to the law applicable to the contract, pointed out that determination of the place of performance depends on the contractual context of the obligations in question and that the contract laws of the Contracting States had very divergent views of the place of performance.
18 In the case of contracts of employment, however, abandonment of the criterion of reference to the law applicable to the contract for the purpose of determining the place of performance and preferring the place where the acts constituting performance of the relevant obligation were localised could be justified by the particular characteristics of this type of contract (see Mulox IBC, paragraph 15).  These had already led the Court to hold that, in the case of such contracts, the obligation to be taken into consideration for the purpose of applying Article 5(1) of the Brussels Convention is always the obligation which characterises the contract, namely the employee's obligation to carry out the work stipulated (see, in particular, Case 133/81 Ivenel v Schwab [1982] ECR 1891, paragraph 20, and Mulox IBC, paragraph 14).
19 The Court has confirmed that, where no such particular features exist, it is neither necessary nor appropriate to identify the obligation which characterises the contract and to centralise at its place of performance a jurisdiction, based on place of performance, over disputes concerning all the obligations under the contract (Case 266/85 Shenavai v Kreischer [1987] ECR 239, paragraph 17).
23 In these circumstances, it must be stressed that the principle of legal certainty is one of the objectives of the Brussels Convention (see, in particular, Case C-129/92 Owens Bank v Fulvio Bracco and Bracco Industria Chimica [1994] ECR I-117, paragraph 32).
24 This principle requires, in particular, that the jurisdictional rules which derogate from the basic principle of the Brussels Convention, such as Article 5(1), should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued (Case C-26/91 Handte v Traitements Mécano-chimiques des Surfaces [1992] ECR I-3967, paragraph 18).
28 Moreover, bearing in mind the important position generally accorded by national contract law to the intention of the parties, the Court has held that, if the parties to the contract are permitted by the applicable law, subject to the conditions it lays down, to specify the place of performance of an obligation without satisfying any special condition of form, that agreement on the place of performance of the obligation is sufficient to found jurisdiction in that place within the meaning of Article 5(1) of the Brussels Convention (Zelger, paragraph 5), on condition that this place has a real connection with the true substance of the contract (Case C-106/95 MSG v Gravières Rhénanes [1997] ECR I-911, paragraphs 30 and 31).
29 In these circumstances, it does not appear justified to substitute the criteria proposed by the national court for the interpretation previously given by the Court, to the effect that the place of performance must be determined in accordance with the law which governs the obligation at issue.  That solution also has the advantage that the competent court is the court of the place where the obligation in question is to be performed in accordance with the law applicable to it.  Indeed, it was because the place of performance usually constitutes the closest connecting factor between the dispute and the court of competent jurisdiction that, with a view to efficient organisation of procedure, the rule of special jurisdiction provided for by Article 5(1) of the Brussels Convention in contractual matters was adopted (Shenavai, paragraph 18, and Custom Made Commercial, paragraphs 12 and 13).
31 It is for the national legislature, which has exclusive competence in this field, to define a place of performance which takes fairly into account both the interests of the sound administration of justice and the interests of adequate protection for individuals.  It may well be that, in so far as national law allows, the national court will have to determine the place of performance by reference to the criteria suggested by the referring court - i.e. by identifying, by reference to the nature of the obligations undertaken and the circumstances of the case, the place where the thing or service contracted for was, or should have been, provided.
32 It follows from all of the foregoing considerations that, on a proper construction of Article 5(1) of the Brussels Convention, the place of performance of the obligation, within the meaning of that provision, is to be determined in accordance with the law governing the obligation in question according to the conflict rules of the court seised.