Hassan Shenavai v Klaus Kreischer.
Date: 1987-01-15
6 IT SHOULD BE RECALLED THAT ARTICLE 2 OF THE CONVENTION LAYS DOWN THE GENERAL RULE THAT JURISDICTION IS TO BE BASED ON THE DEFENDANT' S DOMICILE, BUT THAT ARTICLE 5 ( 1 ) THEREOF FURTHER PROVIDES THAT, IN MATTERS RELATING TO A CONTRACT, THE DEFENDANT MAY ALSO BE SUED "IN THE COURTS FOR THE PLACE OF PERFORMANCE OF THE OBLIGATION IN QUESTION ". AS THE COURT OBSERVED IN ITS JUDGMENT OF 6 OCTOBER 1976 ( CASE 12/76 TESSILI V DUNLOP (( 1976 )) ECR 1473 ), THAT FREEDOM OF CHOICE WAS INTRODUCED IN VIEW OF THE EXISTENCE IN CERTAIN CASES OF A PARTICULARLY CLOSE RELATIONSHIP BETWEEN A DISPUTE AND THE COURT WHICH MAY BE MOST CONVENIENTLY CALLED UPON TO TAKE COGNIZANCE OF THE MATTER .
7 IN THE SAME JUDGMENT THE COURT RULED THAT THE QUESTION OF THE LOCATION OF THE "PLACE OF PERFORMANCE" OF AN OBLIGATION WAS TO BE DETERMINED PURSUANT TO THE LAW GOVERNING THE OBLIGATION AT ISSUE AND IN ACCORDANCE WITH THE RULES ON THE CONFLICT OF LAWS OF THE COURT BEFORE WHICH THE MATTER WAS BROUGHT .
8 IN ANOTHER JUDGMENT OF 6 OCTOBER 1976 ( CASE 14/76 DE BLOOS V BOUYER (( 1976 )) ECR 1497 ) THE COURT OBSERVED THAT THE CONVENTION WAS INTENDED TO DETERMINE THE INTERNATIONAL JURISDICTION OF THE COURTS OF THE CONTRACTING STATES, TO FACILITATE THE RECOGNITION OF JUDGMENTS AND TO INTRODUCE AN EXPEDITIOUS PROCEDURE FOR SECURING THE ENFORCEMENT OF JUDGMENTS; IT HELD THAT THOSE OBJECTIVES IMPLIED THE NEED TO AVOID, SO FAR AS POSSIBLE, CREATING A SITUATION IN WHICH A NUMBER OF COURTS HAD JURISDICTION IN RESPECT OF ONE AND THE SAME CONTRACT, AND THAT ARTICLE 5 ( 1 ) OF THE CONVENTION COULD THEREFORE NOT BE INTERPRETED AS REFERRING TO ANY OBLIGATION WHATSOEVER ARISING UNDER THE CONTRACT IN QUESTION .
9 THE COURT CONCLUDED THAT, FOR THE PURPOSES OF DETERMINING THE PLACE OF PERFORMANCE WITHIN THE MEANING OF ARTICLE 5, THE OBLIGATION TO BE TAKEN INTO ACCOUNT WAS THAT WHICH CORRESPONDED TO THE CONTRACTUAL RIGHT ON WHICH THE PLAINTIFF' S ACTION WAS BASED . IT RULED THAT, IN A CASE WHERE THE PLAINTIFF ASSERTED THE RIGHT TO BE PAID DAMAGES OR SOUGHT DISSOLUTION OF THE CONTRACT ON THE GROUND OF THE WRONGFUL CONDUCT OF THE OTHER PARTY, THAT OBLIGATION WAS STILL THAT WHICH AROSE UNDER THE CONTRACT AND THE NON-PERFORMANCE OF WHICH WAS RELIED UPON TO SUPPORT SUCH CLAIMS .
11 GUIDED BY SIMILAR CONSIDERATIONS, THE COURT, IN ITS JUDGMENT OF 26 MAY 1982 ( CASE 133/81 IVENEL V SCHWAB (( 1982 )) ECR 1891 ), HELD THAT IN THE CASE OF A CLAIM BASED ON DIFFERENT OBLIGATIONS ARISING UNDER A SINGLE CONTRACT FOR COMMERCIAL REPRESENTATION WHICH HAD BEEN DESCRIBED BY THE NATIONAL COURT AS A CONTRACT OF EMPLOYMENT, THE OBLIGATION TO BE TAKEN INTO CONSIDERATION FOR THE PURPOSES OF ARTICLE 5 ( 1 ) OF THE CONVENTION WAS THE OBLIGATION WHICH CHARACTERIZED THE CONTRACT AND WAS NORMALLY THE OBLIGATION TO CARRY OUT WORK .
16 IN THAT CONNECTION IT SHOULD FIRST BE OBSERVED THAT CONTRACTS OF EMPLOYMENT, LIKE OTHER CONTRACTS FOR WORK OTHER THAN ON A SELF-EMPLOYED BASIS, DIFFER FROM OTHER CONTRACTS - EVEN THOSE FOR THE PROVISION OF SERVICES - BY VIRTUE OF CERTAIN PARTICULARITIES : THEY CREATE A LASTING BOND WHICH BRINGS THE WORKER TO SOME EXTENT WITHIN THE ORGANIZATIONAL FRAMEWORK OF THE BUSINESS OF THE UNDERTAKING OR EMPLOYER, AND THEY ARE LINKED TO THE PLACE WHERE THE ACTIVITIES ARE PURSUED, WHICH DETERMINES THE APPLICATION OF MANDATORY RULES AND COLLECTIVE AGREEMENTS . IT IS ON ACCOUNT OF THOSE PARTICULARITIES THAT THE COURT OF THE PLACE IN WHICH THE CHARACTERISTIC OBLIGATION OF SUCH CONTRACTS IS TO BE PERFORMED IS CONSIDERED BEST SUITED TO RESOLVING THE DISPUTES TO WHICH ONE OR MORE OBLIGATIONS UNDER SUCH CONTRACTS MAY GIVE RISE .
17 WHEN NO SUCH PARTICULARITIES EXIST, IT IS NEITHER NECESSARY NOR APPROPRIATE TO IDENTIFY THE OBLIGATION WHICH CHARACTERIZES THE CONTRACT AND TO CENTRALIZE AT THE PLACE OF PERFORMANCE THEREOF JURISDICTION, BASED ON PLACE OF PERFORMANCE, OVER DISPUTES CONCERNING ALL THE OBLIGATIONS UNDER THE CONTRACT . THE VARIETY AND MULTIPLICITY OF CONTRACTS AS A WHOLE ARE SUCH THAT THE ABOVE CRITERION MIGHT IN THOSE OTHER CASES CREATE UNCERTAINTY AS TO JURISDICTION, WHEREAS IT IS PRECISELY SUCH UNCERTAINTY WHICH THE CONVENTION IS DESIGNED TO REDUCE .
18 ON THE OTHER HAND, NO SUCH UNCERTAINTY EXISTS FOR MOST CONTRACTS IF REGARD IS HAD SOLELY TO THE CONTRACTUAL OBLIGATION WHOSE PERFORMANCE IS SOUGHT IN THE JUDICIAL PROCEEDINGS . THE PLACE IN WHICH THAT OBLIGATION IS TO BE PERFORMED USUALLY CONSTITUTES THE CLOSEST CONNECTING FACTOR BETWEEN THE DISPUTE AND THE COURT HAVING JURISDICTION OVER IT, AND IT IS THIS CONNECTING FACTOR WHICH EXPLAINS WHY, IN CONTRACTUAL MATTERS, IT IS THE COURT OF THE PLACE OF PERFORMANCE OF THE OBLIGATION WHICH HAS JURISDICTION .
19 ADMITTEDLY, THE ABOVE RULE DOES NOT AFFORD A SOLUTION IN THE PARTICULAR CASE OF A DISPUTE CONCERNED WITH A NUMBER OF OBLIGATIONS ARISING UNDER THE SAME CONTRACT AND FORMING THE BASIS OF THE PROCEEDINGS COMMENCED BY THE PLAINTIFF . HOWEVER, IN SUCH A CASE THE COURT BEFORE WHICH THE MATTER IS BROUGHT WILL, WHEN DETERMINING WHETHER IT HAS JURISDICTION, BE GUIDED BY THE MAXIM ACCESSORIUM SEQUITUR PRINCIPALE; IN OTHER WORDS, WHERE VARIOUS OBLIGATIONS ARE AT ISSUE, IT WILL BE THE PRINCIPAL OBLIGATION WHICH WILL DETERMINE ITS JURISDICTION . THAT COMPLICATION DOES NOT, HOWEVER, ARISE IN THE CASE REFERRED TO IN THE QUESTION RAISED BY THE LANDGERICHT KAISERSLAUTERN .
20 THE ANSWER TO BE GIVEN TO THE QUESTION REFERRED TO THE COURT SHOULD THEREFORE BE THAT, FOR THE PURPOSES OF DETERMINING THE PLACE OF PERFORMANCE WITHIN THE MEANING OF ARTICLE 5 ( 1 ) OF THE CONVENTION, THE OBLIGATION TO BE TAKEN INTO CONSIDERATION IN A DISPUTE CONCERNING PROCEEDINGS FOR THE RECOVERY OF FEES COMMENCED BY AN ARCHITECT COMMISSIONED TO DRAW UP PLANS FOR THE BUILDING OF HOUSES IS THE CONTRACTUAL OBLIGATION WHICH FORMS THE ACTUAL BASIS OF LEGAL PROCEEDINGS .