C-784/79
ECLI:EU:C:1980:123
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JUDGMENT OF 6. 5. 1980 — CASE 784/79
required by Article 17 of the contract as a whole does not in itself Convention, is mentioned in a provision suffice. It is not however necessary for specially and exclusively meant for this that clause to be mentioned in a purpose and which has been specifically document separate from the one which signed by the party domiciled in Luxem- constitutes the written instrument of the bourg; in this respect the signing of the contract.
In Case 784/79
REFERENCE to the Court under the Protocol of 3 June 1971 on the in- terpretation by the Court of Justice of the Convention of 17 September 1968 in Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, by the Oberlandesgericht [Higher Regional Court] Koblenz (Second Civil Senate), for a preliminary ruling in the action pending before that court between
PORTA-LEASING G M B H , Trier,
and
PRESTIGE INTERNATIONAL S.A., Senningerberg, Luxembourg,
on the interpretation of the second paragraph of Article I of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,
T H E COURT (Third Chamber)
composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Judges,
Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
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JUDGMENT
Facts and Issues
The facts and the arguments of the only if that person has expressly and parties in the course of the written specifically so agreed". procedure may be summarized as follows: In the opinion of that court the provision should be interpreted as meaning that the clause conferring jurisdiction is binding I — F a c t s and p r o c e d u r e on a person domiciled in Luxembourg only if it is contained in a separate The plaintiff in the main action, whose document apart from the other terms in registered office is at Trier, entered into the contract. a series of leasing contracts for motor vehicles with the defendant in the main action, whose registered office is at When the case was brought before it on Senningerberg, Luxembourg. appeal, the Oberlandesgericht Koblenz referred the following question to the The contracts were drawn up in advance Court of Justice for a preliminary ruling: as standard printed contracts and contain a clause concerning jurisdiction which reads as follows: "Does an agreement conferring jurisdiction which is contained in a "The place of performance and of standard form contract concluded with jurisdiction for all the obligations arising and signed by a person resident in under this contract shall be the place Luxembourg but to which his attention where the lessor has its seat". has not specifically been brought satisfy the requirements as to validity contained After terminating the contracts at issue in the second paragraph of Article I of the plaintiff instituted proceedings the Protocol annexed to the Convention against the defendant in the Landgericht of 27 September 1968 on Jurisdiction [Regional Court] Trier for payment of and the Enforcement of Judgments in rental due and damages, but the court Civil and Commercial Matters?". declared that it had no jurisdiction because the clause conferring jurisdiction, on which the proceedings The order making the reference to the had been brought before it, did not meet Court was lodged at the Court Registry the conditions laid down in the second on 23 October 1979. Written obser paragraph of Article I of the Protocol vations were submitted, under Article 5 annexed to the Convention on of the Protocol of 3 June 1971 on the Jurisdiction and Enforcement of interpretation by the Court of Justice of Judgments in Civil and Commercial the Convention of 27 September 1968, Matters (hereinafter referred to as "the by the Commission of the European Convention"), according to which: "An Communities represented for this agreement conferring jurisdiction, within purpose by its Legal Adviser, Mr Bebr, the meaning of Article 17 (of the acting as Agent, assisted by W.-D. Convention), shall be valid with respect Krause-Ablaß, Advocate of the to a person domiciled in Luxembourg Düsseldorf Bar.
JUDGMENT OF 6. 5. 1980 — CASE 784/79
II — Written observations sub- first is that the words “expressly” and mitted under the Protocol “specifically” are joined by the of 3 June 1971 conjunction “and”, which means that specific agreement constitutes a third condition to be added to the two others Observations of the Commission referred to above. The second is that the expression “specifically so agreed” may be understood in two ways. It might be According to the Commission, the sufficient for the clause conferring agreement conferring jurisdiction re- jurisdiction to be identified in a ferred to by the national court is only particular manner, for example, by effective : underlining it or by printing it in heavy type in the text of the contract. A more restrictive interpretation is however (a) If the general conditions laid down possible: it would require the agreement in Article 17 of the Convention are conferring jurisdiction to be accepted by met, that is to say, that there is an the Luxembourg party in a separate agreement in writing or an oral written declaration containing no other agreement evidenced in writing. It is contractual provision, that is to say, irrelevant, however, whether the independent of the contract. That contract is a standard one or not requirement would accord with the rules (judgment of 14 December 1976, relating to the form of arbitration Cases 24/76 and 25/76 Estasis Salotti agreements between persons other than and Galeries Segoura [1976] ECR traders under paragraph 1027 of the 1831 and 1851); German Code of Civil Procedure.
(b) If the clause concerning jurisdiction has been “expressly” agreed by the It is the Commission's view that the person domiciled in Luxembourg; second interpretation should be adopted and it submits the following arguments in this connexion: (c) If the clause conferring jurisdiction has been specifically so agreed. (a) The wording of the provision in question If the condition regarding express agreement excludes any tacit or implied agreement, and also excludes the type of case in which the contract signed by both The expression “specifically so agreed”, parties expressly refers to the general in the various language versions, denotes conditions of sale of one of them, there a method of agreement which differs is no reason why the contract signed from that whereby the other contractual should not be a standard contract provisions are agreed to. A declaration provided that it contains in express terms which is distinct from the agreement to the clause conferring jurisdiction. the clause conferring jurisdiction, separate from the agreement to the other provisions in the contract, best accords The outcome of the dispute therefore with that concept. It is not therefore depends on the interpretation of the sufficient for the clause conferring words “specifically so agreed”. In this jurisdiction to be specially distinguished connexion the Commission submits, as it from the other provisions in the contract; were, two preliminary observations. The there must be a separate document.
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(b) The meaning and purpose of the requirements as to validity, there must be provision in question a written, separate declaration whereby the contracting party resident in Luxembourg expressly accepts the agreement conferring jurisdiction and Drawing support from the Jenard Report that declaration must not contain any (Official Journal 1979 C 59, p. 63), the other contractual provision". Commission comments that in view of the large number of international contracts entered into by persons domiciled in Luxembourg, the provision in question is designed to prevent far more actions being brought against them Ill — Oral procedure in foreign courts than against parties domiciled in other Contracting States. That objective has already been partly achieved in so far as the validity of an At the sitting on 20 March 1980 the agreement conferring jurisdiction is plaintiff in the main action, represented subject to its being expressly agreed to by H. Cremer, Advocate at the Koblenz by the party domiciled in Luxembourg. Bar, and the Commission of the Because there are many international European Communities, represented by standard contracts which contain an its Agent, G. Bebr, Legal Adviser at the express clause conferring jurisdiction, Commission of the European there was a need to provide some Communities, assisted by W.-D. Krause- protection, and therefore also a further Ablaß, Advocate at the Düsseldorf Bar, restriction to operate in favour of the presented oral argument. Luxembourgish party, and this implies that there must be a separate document.
The plaintiff in the main action claimed that it was proper to interpret the second paragraph of Article I of the Protocol In conclusion, the Commission is of the restrictively in view of the principle of opinion that the Court should reply to freedom of contract and that that the question which it has been asked as provision was a repetition of Article 17 follows: of the Convention. A specific document was not in any event necessary; it was sufficient that a clause in the contract related expressly to the prorogation of jurisdiction. "An agreement conferring jurisdiction entered into with a person domiciled in Luxembourg and merely inserted among the clauses of a standard contract which The Commission put forward the has also been signed by that person does arguments which it had set out in its not satisfy the requirements as to validity written observations and insisted on the contained in the second paragraph of need for a specific document. Article I of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial The Advocate General delivered his Matters. In order to satisfy those opinion at the sitting on 20 March 1980.
JUDGMENT OF 6. 5. 1980 — CASE 784/79
Decision
1 By an order of 12 October 1979 which was received at the Court on 23 October 1979 the Oberlandesgericht [Higher Regional Court] Koblenz asked the Court under Article I of the Protocol on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Official Journal 1975, L 204, p. 28) for a preliminary ruling on the interpretation of the second paragraph of Article I of the Protocol annexed to the above- mentioned Convention of 27 September 1968.
2 This question arises out of a dispute between a leasing undertaking, the plaintiff in the main action, whose registered office is at Trier, Federal Republic of Germany, and one of its customers, the defendant in the main action, whose registered office is in the Grand Duchy of Luxembourg. The contracts made between the parties were drawn up in advance as standard printed contracts and contain a clause conferring jurisdiction on the courts of the place where the plaintiff in the main action has its seat. When sued by the plaintiff in the Landgericht [Regional Court] Trier the Luxembourg firm disputed the jurisdiction on grounds of locality of the German court by relying on the second paragraph of Article I of the Protocol annexed to the Convention of 27 September 1968.
3 The second paragraph of Article I provides that: "An agreement conferring jurisdiction within the meaning of Article 17 (of the Convention) shall be valid with respect to a person domiciled in Luxembourg only if that person has expressly and specifically so agreed".
4 In order to enable it to resolve the problem of jurisdiction which thus arose the Oberlandesgericht Koblenz, having been asked to rule on appeal, put the following question:
"Does an agreement conferring jurisdiction which is contained in a standard form contract concluded with and signed by a person resident in Luxem- bourg but to which his attention has not specifically been brought satisfy the requirements as to validity contained in the second paragraph of Article I of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters?"
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5 In order to reply to this question the provision which it is sought to interpret should be put in perspective in regard to Article 17 of the Convention. According to Article 17 a prorogation of jurisdiction (Vereinbarung über die Zuständigkeit) agreed to between the parties must be by agreement in writing or by an oral agreement evidenced in writing. It follows from the judgments given by the Court of Justice on 14 December 1976 (Case 24/76 Estasis Salotti and Case 25/76 Segoura ECR 1831 and 1851) that the purpose of the requirement of a writing under Article 17 serves to ensure that the consensus between the parties, who, by a prorogation of competence, depart from the general rules for determining jurisdiction laid down in Articles 2, 5 and 6 of the Convention, is clearly and precisely demonstrated and has actually been reached. The second paragraph of Article I of the Protocol which it is sought to interpret goes further. By expressly providing that an agreement conferring jurisdiction shall be valid with respect to a person domiciled in Luxembourg only if that person has "expressly and specifically so agreed" that provision imposes more special and more strict conditions which are superimposed on those in Article 17 of the Convention.
6 This interpretation accords with the purpose of the second paragraph of Article I of the Protocol annexed to the Convention of 27 September 1968. Indeed, in view of the fact that many contracts concluded by persons resident in the Grand Duchy of Luxembourg are international contracts, the authors of the Convention of 27 September 1968 thought that it was absolutely necessary to make clauses conferring jurisdiction which were likely to be used against persons domiciled in Luxembourg subject to more stringent conditions than those contained in Article 17 of the Convention. This aim can only be completely achieved if the clause in question has been accepted both expressly and specifically by the person domiciled in Luxem- bourg.
7 In regard to persons domiciled in Luxembourg there are therefore two requirements in addition to the conditions contained in Article 17 of the Convention; these must be cumulatively fulfilled, that is to say, first, express agreement and, secondly, specific agreement. A comparison between the words used in Article 17 and those used in Article I of the Protocol indicates that the first of these conditions is not satisfied unless the agreement conferring jurisdiction is contained in a provision which is specially and exclusively devoted to it.
JUDGMENT OF 6. 5. 1980 — CASE 784/79
8 In order to meet the requirement of specific agreement it is further necessary for the Luxembourg party specifically to sign the clause conferring jurisdiction as an indication of his agreement; his mere signing of the contract is not sufficient to secure the safeguards which the second paragraph of Article I of the Protocol has in view. It is not, however, necessary for that clause to be mentioned in a document separate from the one which constitutes the written instrument of the contract.
9. On the basis of the foregoing considerations it is appropriate to answer that the second paragraph of Article I of the Protocol annexed to the Convention of 27 September 1968 must be interpreted as meaning that a clause conferring jurisdiction within the meaning of that provision may not be considered to have been expressly and specifically agreed to by a person domiciled in Luxembourg unless that clause, besides being in writing as required by Article 17 of the Convention, is mentioned in a provision specially and exclusively meant for this purpose and specifically signed by the party domiciled in Luxembourg; in this respect the signing of the contract as a whole does not in itself suffice. It is not however necessary for that clause to be mentioned in a document separate from the one which constitutes the written instrument of the contract.
Costs
10 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
T H E COURT (Third Chamber),
in answer to the question referred to it by the Oberlandesgericht Koblenz (Second Civil Chamber) by order of 12 October 1979, received at the Court on 23 October 1979, hereby rules:
The second paragraph of Article I of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement
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of Judgment in Civil and Commercial Matters must be interpreted as meaning that a clause conferring jurisdiction within the meaning of that provision may not be considered to have been expressly and specifically agreed to by a person domiciled in Luxembourg unless that clause, besides being in writing as required by Article 17 of the Convention, is mentioned in a provision specially and exclusively meant for this purpose and specifically signed by the party domiciled in Luxembourg; in this respect the signing of the contract as a whole does not in itself suffice. It is not however necessary for that clause to be mentioned in a document separate from the one which constitutes the written instrument of the contract.
Kutscher Mertens de Wilmars Mackenzie Stuart
Delivered in open court in Luxembourg on 6 May 1980.
A. Van Houtte H. Kutscher Registrar President
O P I N I O N OF MR ADVOCATE GENERAL REISCHL DELIVERED O N 20 MARCH 1980 1
Mr President Brussels Convention] shall be valid with Members of the Court, respect to a person domiciled in Luxembourg only if that person has The present proceedings concern the expressly and specifically so agreed". interpretation of the second paragraph of Article I of the Protocol annexed to the In 1977 the parties to the main action Convention on Jurisdiction and concluded a series of leasing contracts Enforcement of Judgments in Civil and for motor vehicles on the basis of which Commercial Matters (hereinafter the German company Porta-Leasing referred to as "the Brussels GmbH, the plaintiff in the main action, Convention"), according to which: submitted claims, according to its own statements, for performance of the "An agreement concerning jurisdiction, contracts and damages against the — within the meaning of Article 17 [of the Luxembourg company Prestige Inter-
1 — Translated from the German.