Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co. KG (WABAG) and Planungs- und Forschungsgesellschaft Dipl. Ing. W. Kretzschmar GmbH & KG (Plafog).
Date: 2002-02-19
24 As the referring court itself points out, the Court has repeatedly held that the principle of legal certainty is one of the objectives of the Brussels Convention (Case 38/81 Effer [1982] ECR 825, paragraph 6; Case C-26/91 Handte [1992] ECR I-3967, paragraphs 11, 12, 18 and 19; Case C-129/92 Owens Bank [1994] ECR I-117, paragraph 32; Case C-288/92 Custom Made Commercial [1994] ECR I-2913, paragraph 18; and Case C-440/97 GIE Groupe Concorde and Others [1999] ECR I-6307, paragraph 23).
25 According to its preamble, the Brussels Convention is intended to strengthen in the Community the legal protection of persons established therein, by laying down common rules on jurisdiction to guarantee certainty as to the allocation of jurisdiction among the various national courts before which proceedings in a particular case may be brought (see, to that effect, Custom Made Commercial, cited above, paragraph 15).
26 That principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the basic principle of the Brussels Convention laid down in Article 2, such as the rule in 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 (Handte, cited above, paragraph 18, and GIE Groupe Concorde and Others, paragraph 24).
27 Second, the Court has consistently held that it is essential to avoid, so far as possible, creating a situation in which a number of courts have jurisdiction in respect of one and the same contract, in order to preclude the risk of irreconcilable decisions and to facilitate the recognition and enforcement of judgments in States other than those in which they were delivered (Case 14/76 De Bloos [1976] ECR 1497, paragraph 9; Case 266/85 Shenavai [1987] ECR 239, paragraph 8; Case C-125/92 Mulox IBC [1993] ECR I-4075, paragraph 21; Case C-383/95 Rutten [1997] ECR I-57, paragraph 18; and Case C-420/97 Leathertex [1999] ECR I-6747, paragraph 31).
30 According to the Jenard Report on the Brussels Convention (OJ 1979 C 59, p. 1, at p. 22), the special rules of jurisdiction laid down in Section 2 of Title II of that Convention are justified in particular by the consideration that there is a close connecting factor between the dispute and the court called upon to resolve it (see Case 56/79 Zelger [1980] ECR 89, paragraph 3).
31 The reason for the adoption of the jurisdictional rule in Article 5(1) of the Brussels Convention was concern for sound administration of justice and efficacious conduct of proceedings (see, to this effect, in particular Tessili, paragraph 13; Shenavai, paragraph 6, and Mulox IBC, paragraph 17, and, by way of analogy, as regards Article 5(3) of the Brussels Convention, Case C-220/88 Dumez France and Tracoba [1990] ECR I-49, paragraph 17; Case C-68/93 Shevill and Others [1995] ECR I-415, paragraph 19; and Case C-364/93 Marinari [1995] ECR I-2719, paragraph 10). The court of the place where the contractual obligation giving rise to the action is to be performed will normally be the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence.
33 However, as the Commission rightly points out, application of the Court's traditional case-law, according to which the place of the performance of the obligation in question, within the meaning of Article 5(1) of the Brussels Convention, is to be determined in accordance with the law governing the obligation in question, according to the conflict rules of the court seised (Tessili, paragraphs 13 and 15; Custom Made Commercial, paragraph 26; GIE Groupe Concorde and Others, paragraph 32; and Leathertex, paragraph 33), does not enable that result to be achieved.
36 A further point is that it is not possible, in a situation such as that at issue in the present case, to give an autonomous interpretation of the place of performance, referred to in Article 5(1) of the Brussels Convention, without calling in question the case-law established since Tessili, recalled in paragraph 33 above and upheld most recently by the Court in its judgments in GIE Groupe Concorde and Others and Leathertex.
38 Further, it is true that there is settled case-law, as regards contracts of employment, to the effect, first, 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 objectives of the Brussels Convention (Mulox IBC, paragraph 16); next, that those 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); finally, that, where the employee performs his work in more than one Contracting State, the place where the obligation characterising the contract is to be performed, within the meaning of Article 5(1) of the Brussels Convention, is the place where or from which the employee principally discharges his obligations towards his employer (Mulox IBC, paragraph 26) or where the employee has established the effective centre of his activities (Rutten, paragraph 26).
40 As the Court has repeatedly held (see, in particular, Shenavai, paragraph 17, GIE Groupe Concorde and Others, paragraph 19, and Leathertex, paragraph 36), where these specific features of a contract of employment are lacking, it is neither necessary nor appropriate to identify the obligation which characterises the contract and to centralise at its place of performance all jurisdiction, based on place of performance, over disputes concerning all the obligations under the contract.
42 Finally, the Commission proposes to apply by analogy the solution adopted by the Court in paragraph 19 of the judgment in Shenavai, so that, for the purposes of Article 5(1) of the Brussels Convention, the determining factor, in a case such as this, would not be the place of performance of the non-competition undertaking but the place of performance of the positive obligation to which that undertaking is accessory, in that it guarantees its proper performance.
44 The Court finds, however, that such an interpretation would be hardly compatible with the wording of Article 5(1) of the Brussels Convention, which, since its amendment, in some language versions, by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, specifies that the obligation whose place of performance determines which court has jurisdiction is the obligation which forms the basis of the claim [in the English version the obligation in question]. Nor would that interpretation be compatible with the case-law of the Court on the version prior to that amendment of that provision, according to which the obligation whose place of performance determines judicial jurisdiction for the purposes of Article 5(1) is that which arises under the contract and the non-performance of which is relied upon in support of the action (De Bloos, paragraphs 14 and 15).
46 It is, moreover, settled case-law that, in view of the allocation of jurisdiction under the preliminary ruling procedure provided for by the Protocol of 3 June 1971 on the interpretation of the Brussels Convention by the Court of Justice, it is for the national court to rule on those questions of fact, the Court confining itself to interpreting that Convention in the light of the findings made by the national court (see, to that effect, Leathertex, paragraph 21).
50 In those circumstances jurisdiction can, in such a case, be determined solely in accordance with Article 2 of the Brussels Convention, which provides a certain and reliable criterion (Case 32/88 Six Constructions [1989] ECR 341, paragraph 20).
52 The system of common rules on conferment of jurisdiction laid down in Title II of the Brussels Convention is based on the general rule, set out in the first paragraph of Article 2, that persons domiciled in a Contracting State are to be sued in the courts of that State, irrespective of the nationality of the parties. That jurisdictional rule is a general principle, which expresses the maxim actor sequitur forum rei, because it makes it easier, in principle, for a defendant to defend himself (see, in particular, Case C-412/98 Group Josi [2000] ECR I-5925, paragraphs 34 and 35).
54 However, it is well settled that that option must not give rise to an interpretation going beyond the cases expressly envisaged by the Brussels Convention, for otherwise the general principle laid down in the first paragraph of Article 2 would be undermined and a claimant might be able to affect the choice of a court unforeseeable for a defendant domiciled in the territory of a Contracting State (see, in particular, Group Josi, paragraphs 49 and 50, and the references there).