C-56/79

on the interpretation of Articles 5 and 17 of the above-mentioned Convention,

THE COURT

composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (President of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,

Advocate General: F. Capatorti Registrar: A. Van Houtte

gives the following

ZELGER v SALINITRI

The judgment making the reference to Matters; the plaintiff lodged an appeal the Court and the written observations against that judgment in the Bun- submitted pursuant to Article 20 of the desgerichtshof, in which he pursued his Protocol on the Statute of the Court of claim. Justice of the EEC may be summarized as follows: The Bundesgerichtshof — Third Civil Chamber — made an order on 15 March 1979 requesting a preliminary ruling from the Court of Justice under Article 3 I — Facts and p r o c e d u r e of the Protocol of 3 June 1971 on the Interpretation of the Convention of 27 September 1968 and Article 2 of the Siegfried Zeiger, the plaintiff in the main German Law of 7 August 1972 on the action, is a merchant in Munich, Federal Republic of Germany, and Sebastiano following question: Salitnitri, the defendant in the main Does an informal agreement which is action, is a merchant in Mascali, Sicily, effective under national — in this case Italy. German — law between full-scale merchants (Vollkaufleute) concerning After business dealings over a number of the place of performance of the years a lawsuit arose over payment obligation which is at issue in the alleged to be outstanding on a loan proceedings suffice to found jurisdiction dating back to 1975 and 1976; the in that place under Article 5 (1) of the plaintiff commenced proceedings before Convention, or is the capacity of such an the Landgericht München I [Regional agreement to found jurisdiction Court, Munich I] for payment of the dependent upon observance of the form alleged debt by the defendant, claiming laid down in Article 17 of the that the parties had made an express oral Convention? agreement that Munich was to be the place of performance for the repayment. The Landgericht München I dismissed the claim on the ground that it did not II — W r i t t e n o b s e r v a t i o n s sub- have international jurisdiction, and the mitted to the C o u r t plaintiffs appeal to the Oberland- esgericht München [Regional Court of In accordance with Article 20 of the Appeal, Munich] was also unsuccessful. Statute of the Court of Justice of the That court stated that mere oral EEC, written observations were agreement on the place of performance submitted by the plaintiff in the main does not suffice to found international action, represented for the purpose by jurisdiction, and the capacity of such an Dr Nirk, Rechtsanwalt at the Bun- agreement to found jurisdiction depends desgerichtshof, Karlsruhe, by the upon observance of the form laid down Government of the United Kingdom of in Article 17 of the Convention on Great Britain and Northern Ireland, Jurisdiction and the Enforcement of represented for the purpose by R. D. Judgments in Civil and Commercial Munrow, Assistant Treasury Solicitor,

• acting as Agent, and by the Commission, vhich is merely to restrict the parties' represented for the purpose by its Legal ireedom of action regarding agreements Adviser, Rolf Wägenbaur, acting as on which court is generally to have Agent, and assisted by Wolf-Dietrich jurisdiction. Krause-Ablass, Rechtsanwalt, Düssel- dorf. In the light of those circumstances, since the "Community legislature" leaves it to the national legislature to define and A — Observations of the plaintiff in the delimit the ambit of the concept of main action "place of performance", the plaintiff in the main action maintains that the "Community legislature" has likewise The plaintiff in the main action points left to the national legislature the oppor- out, first, that according to Article 5 (1) tunity of determining the conditions in of the Convention, "the jurisdiction which a place of performance may be conferred on the courts for the place of established by agreement between the performance gives them international parties, whereby the courts in that place jurisdiction also". of performance would have special jurisdiction conferred upon them. He maintains that the Court ruled — in the judgment in Case 12/76 Tessili v Dunlop [1976] ECR 1473 — that it is for Accordingly, the plaintiff suggests that the court before which the matter is the reply to the question which has been brought to establish whether the place of referred to the Court should be as performance "is situated within its follows : territorial jurisdiction", and thus to determine the law applicable to the legal An informal agreement which is effective relationship in question and to "define in under national — in this case German — accordance with that law the place law between full-scale merchants of performance of the contractual (Vollkaufleute) concerning place of per- obligation in question". The Court also formance of the obligation which is at stated that "it does not appear possible issue in the proceedings need only meet to give any more substantial guide to the the requirements of national law so as to interpretation of the reference made by found jurisdiction under Article 5 (1) of Article 5 (1)" of the Convention "to the the Convention. The effectiveness of 'place of performance' of contractual such an agreement is not dependent obligations". upon observance of the form laid down in Article 17 of the Convention. Since the Court leaves the interpretation of the term "place of performance" to the national courts, the plaintiff in the B — Observations of the Commission main action is of the opinion that "the agreement concerning the place of per- formance effective under national law The Commission, relying on the must — even if it is made by word of judgment in Case 12/76, Tessili (cited mouth — be held to constitute a proper above), contends that the place of per- legal foundation for the special formance of the obligation which is at jurisdiction conferred by Article 5 (1) of issue in the proceedings is to be the Convention". determined in accordance with the law governing the obligation at issue on the Article 5 of the Convention is not basis of the rules of conflict of laws of affected by Article 17, the object of the national court seised of the case. If

that law holds an informal agreement (1) on the place of performance and between the parties as to the place of conferring jurisdiction must observe performance to be valid, this will suffice the requirements of form laid down to found the jurisdiction of the courts for by Article 17, because if an informal the place of performance by virtue of agreement on the place of per- Article 5 (1) of the Convention, thereby formance were valid in the light of establishing "a special jurisdiction closely the clauses permitting the place of connected : with the contractual performance of the obligation at issue obligation at issue". Since the latter must to be determined, there would be no be performed in the place agreed upon, reason "to exclude the competence of. "that place is likewise the place which the courts within whose jurisdiction should determine which courts have the obligation at issue must be jurisdiction for the place of per- performed by virtue of an informal formance". agreement between the parties". The Commission is of the opinion that 2. The two courts also state that the

effective under the national law shows that the authors of the applicable in the matter and which Convention "did not intend to impose concerns the place of performance of the on jurisdiction dependent on an agreement as to the place of per- obligation at issue in the proceedings formance the same restrictions as establishes jurisdiction within the those laid down in Article 17 of the meaning of Article 5 (1) of the Convention for agreements conferring Convention of 27 September 1968 on jurisdiction". Jurisdiction and the Enforcement of Judgments in Civil and Commercial

JUDGMENT OF 17. I. 1980 — CASE 56/79

requirements of form prescribed by still be arbitrary and unsatisfactory" in Article 17 of the Convention". the United Kingdom's submission.

ZELGER v SALINITRI

the place of performance of a con- performance, or direct derivation from tractual obligation". rules of national law". The United Kingdom therefore submits Ill — Oral procedure that the question which has been referred to the Court for a preliminary ruling At the sitting on 15 November 1979 the should be answered to the effect that Commission, represented for the "the courts for the place of performance purposes of the oral procedure by its of the obligation which is at issue in any Legal Adviser, Rolf Wägenbaur, assisted particular proceedings will have by Wolf-Dietrich Krause-Ablass, of the jurisdiction over that obligation by Düsseldorf Bar, submitted oral whatever means the place of per- argument. formance has been designated, be it formal or informal agreement, The Advocate General delivered his implication from the other terms of a opinion at the sitting on 11 December contract which is silent on the place of 1979.

Decision

1 By order of 15 March 1979, received at the Court Registry on 11 April 1979, the Bundesgerichtshof [Federal Court of Justice] referred to the Court, under Article 3 of the Protocol of 3 June 1971 on the Interpretation of the Convention of Brussels of 27 September 1968 (hereinafter referred to as "the Convention"), a question concerning the interpretation of Article 5 (1) and 17 of the said Convention.

This question has been raised in the course of litigation between two merchants, one domiciled in Munich, in the Federal Republic of Germany, and the other in Mascari, in Italy, relating to the repayment by the defendant in the main action of a loan said to have been made to him by the plaintiff in the main action. The latter, relying upon an oral agreement under which Munich is said to have been fixed as the place of repayment, instituted proceedings before the Landgericht München [Munich Regional Court] which held that it had no jurisdiction on the grounds that, on the one hand, a mere oral agreement on the place of performance was not sufficient to establish international jurisdiction and, on the other hand, that that agreement could only have the effect of conferring jurisdiction if the form prescribed by Article 17 of the Convention had been observed. That decision

4 By contrast, Article 17, which occurs in Section 6 of the Convention intitled "Prorogation of jurisdiction" and which provides for the exclusive jurisdiction of the court designated by the parties in accordance with the

ZELGER v SALINITRI

prescribed form, puts aside both the rule of general jurisdiction — provided for in Article 2 — and the rules of special jurisdiction — provided for in Article 5 •— and dispenses with any objective connexion between the legal relationship in dispute and the court designated. It thus appears that the jurisdiction of the court for the place of performance (provided for in Article 5 ( 1 ) ) and that of the selected court (provided for in Article 17)· are two distinct concepts and only agreements selecting a court are subject to the requirements of form prescribed by Anicie 17 of the Convention.

5 Consequently, if the parties to the contract are permitted by the law applicable to the contract, subject to any conditions imposed by that law, to specify the place of performance of an obligation without satisfying any special condition of form, an 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 Convention.

6 The answer to the question put by the Bundesgerichtshof must therefore be that if the place of performance of a contractual obligation has been specified by the parties in a clause which is valid according to the national law applicable to the contract, the court for that place has jurisdiction to take cognizance of disputes relating to that obligation under Article 5 (1) of the Convention of Brussels of 27 September 1968, irrespective of whether the formal conditions provided for under Article 17 have been observed.

Kutscher O'Keeffe Touffait Mertens de Wilmars Pescatore

Mackenzie Stuart Bosco Koopmans Due

Delivered in open court in Luxembourg on 17 January 1980.

A. Van Houtte H. Kutscher Registrar President

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 11 DECEMBER 1979 *

Mr President, Enforcement of Judgments in Civil and Members of the Court, Commercial Matters provides, as the Court is aware, that in the field of 1. The Convention of Brussels of 27 contracts the "courts for the place of September 1968 on Jurisdiction and the performance of the obligation in