C-38/81
ECLI:EU:C:1982:79
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J U D G M E N T OF T H E C O U R T (FIRST CHAMBER) 4 MARCH 1982 '
Effer SpA v Hans-Joachim Kantner (reference for a preliminary ruling from the Bundesgerichtshof)
(Brussels Convention)
Case 38/81
Convention on Jurisdiction and the Enforcement of Judgments — Jurisdiction in matters relating to a contract — Scope — Dispute between the parties as to the existence of the contract —Jurisdiction extends to that question (Convention of 27 September 1968, Art. 5 (1))
In the cases provided for in Article 5 (1) brought to examine whether it has of the Convention of 27 September 1968, jurisdiction under the Convention. the national court's jurisdiction to Therefore the plaintiff may invoke the determine questions x relating to a jurisdiction of the courts of the place of contract includes the power to consider performance in accordance with Article 5 the existence of the constituent parts of (1) of thé Convention, even when the the contract itself, since that is existence of the contract on which the indispensable in order to enable the claim is based is in dispute between the national court in which proceedings are parties.
In Case 38/81
REFERENCE to the Court under the Protocol of 3 June 1971 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 by the Bundesgerichtshof [Federal Court of Justice] for a preliminary ruling in the action pending before that Court between
I — Language of the Case: German.
JUDGMENT OF 4. 3. 198: — CASE 38/81
EFFER SPA, Castel Maggiore (Bologna), Italy,
and
HANS-JOACHIM KANTNER, Langen, Federal Republic of Germany,
on the interpretation of Article 5 (1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Official Journal 1978, L 304, p. 36),
T H E C O U R T (First Chamber)
composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,
Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
I — Facts and written procedure crane jib developed by Effer was contrary to existing patent rights, ¡t was necessary for a patent agent to carry out Mr Kantner is the head of a patent certain investigations in the Federal agents' office in Darmstadt. He claims Republic of Germany. Following a from Effer payment of a fee, the amount discussion between Effer and Hykra, the of which is not in dispute. latter commissioned Mr Kantner in December 1971 for that purpose. The Effer undertaking manufactured cranes and had them distributed in the The parties to the main action are not Federal Republic of Germany through agreed as to whether Hykra, which has the Hvkra undertaking. In order to since become bankrupt, commissioned establish whether the sale of a folding Mr Kantner in the name of Effer or in
EFFER v KANTNER
its own name. Owing to the alleged General the Court decided to open the absence of any contract between it and oral procedure without any preparatory Mr Kantner, Effer argues that the inquiry. It also decided, pursuant to Germany courts have no jurisdiction to Anicie 95 (1) and (2) of the Rules of decide the dispute. Procedure, to assign the case to the First Chamber. The German court of first instance before which Mr Kantner sued Effer found in favour of Mr Kantner, who also won on appeal. Effer then brought II — W r i t t e n o b s e r v a t i o n s s u b - an appeal on a point of law before the m i t t e d u n d e r A r t i c l e 5 of Bundesgerichtshof, which, by an order of the P r o t o c o l of 3 J u n e 1971 29 January 1981, referred the following question to the Court of Justice for a preliminary ruling: Mr Kantner takes the view that the question submitted by the Bundes- "May the plaintiff invoke the jurisdiction gerichtshof for a preliminary ruling must of the courts of the place of performance be answered in the affirmative. in accordance with Article 5 (1) of the Convention even when the existence of He emphasizes that in providing in the contract on which the claim is based Article 5 (1) that, in matters relating to a is in dispute between the parties?" contract, the courts for the place of performance of the obligation in The order making the reference was question have jurisdiction, the authors of lodged at the Court Registry on 19 the 1968 Convention were proceeding on February 1981. the view that in such matters, the courts for the place of performance offer Written observations were submitted special guarantees that justice will be under Article 5 of the Protocol of 3 June done. This is why, even from the foreign 1971 on the Interpretation by the Court defendant's point of view, it does not of Justice of the Convention of 27 seem inequitable to leave the choice of September 1968 by Mr Kantner, the courts to the plaintiff. represented by O. Brändel, Rechts- anwalt, by Effer, represented by F. W. According to Mr Kantner, it would be Beckenstráter, Rechtsanwalt, of Frank- only too easy to interfere with the fun am Main, by the Government of the intended aim of the legislature by United Kingdom, represented by G. arguing that the above-mentioned article Dagtoglou, of the Treasury Solicitor's is always inapplicable, whenever the Department, acting as Agent, who defendant disputes the existence of a submitted a repon written by K. M. contract. Any action arising out of a Newman of the Lord Chancellor's contract and brought before the courts Depanment, and by the Commission of for the place of performance would be in the European Communities, represented danger of being dismissed, merely on the by its Legal Adviser, Erich Zimmermann, ground that the defendant disputed the acting as Agent, assisted by W.-D. existence of a contract, without further Krause-Ablass, Rechtsanwalt, of explaining his reasons. This would in Düsseldorf. practice strip of all meaning the rule conferring jurisdiction on the courts for Upon hearing the repon of the Judge- the place of execution, which is of great Rapponeur and views of the Advocate economic importance. Therefore Article
JUDGMENT OF 4. 3. I9j2 — CASE 38/81
5 (1) should be interpreted as meaning court seised as the court for the place of that the jurisdiction of the courts for performance. the place of performance must be determined exclusively according to the According to Effer, it follows clearly statement of facts made by the plaintiff from various passages from the Jenard and not on the basis of the question Repon on the Convention (Official whether the defendant admits or disputes Journal 1979, C 59, p. 1), that Anicie 5 the existence of a contract. (1) contains an exception to the general rule, accepted by the Convention, of the Mr Kantner does not deny that, if this jurisdiction of the couns of the interpretation were accepted, the plaintiff defendant's residence and that the could secure the application of the rule condition justifying that exception is the for determining jurisdiction contained in existence of a contract.
It refers, inter Article 5 (1) of the Convention merely alia, to the German passage appearing on bv alleging that he is asserting rights page 22 of the repon, under the sub- under a contract. Nevertheless, he heading "Gerichtsstand für Klagen aus believes, on the one hand, that this Venrägen" ("Forum contractus (Article 5 situation is the inevitable result of a rule (1)) including contracts of employment"; which is intended to provide a special in the French version:
"Forum jurisdiction for the plaintiff and, on the contractus"), which states that the other, that it carries no unacceptable risk jurisdiction of the couns for the place of for the foreign defendant, since if the performance is limited, as in German plaintiffs case is not well founded, his law, to "Ansprüche aus Venrägen" action will have no more likelihood of (matters relating to contract; in the succeeding before a national court than French version: "matière contractuelle").
before a foreign court. In the absence of a contract, even when Finally, Mr Kantner notes that the the existence of a contract is in issue ab material scope of the provision in origine, the general rule in Anicie 2 of question must be given a broad interpret- the Convention is once again applicable. ation in view of the terms used in the different languages of the Convention The above-mentioned repon notes that it for "matters relating to a contract" would be unwise "to give jurisdiction to ("Vertrag oder Ansprüche aus einem a number of couns".
If the opinion of Vertrag", "matière contractuelle", the plaintiff in the main proceedings "materia contrattuale") and also because were accepted, exactly the opposite that is the prevailing opinion in case-law position would be obtained. Funher- and academic writings. more, if the plaintiff's argument is correct, every conceivable case will come For its pan, Effer takes the view that the within the provisions of Anicie 5, and German version of Article 5 (1) cannot the question arises in which cases the provide the basis for an argument to the general rule on the determination of effect that the action may be founded jurisdiction contained in Anicie 2 of the not only on the rights arising out of a Convention will still apply. contract but also on the contract itself. Indeed, it follows from the Italian and The United Kingdom notes that at first French versions of the provision, which sight the question submitted by the are as authentic as the German, that in Bundesgerichtshof seems to require a any event the actual existence of the negative answer, owing to the well- contract can no longer be in issue in known principle whereby all provisions order to establish the jurisdiction, from containing exceptions to a general rule an international point of view, of the are to be interpreted strictly.
In relation
EFFER v KANTNER
to Anicie 5(1) this principle leads to the 16 (1) of the Convention, which itself conclusion that, in the absence of a makes provision for a special jurisdiction. contract, there can be no contractual obligation, the performance of which could found jurisdiction.
The United Kingdom admits that it would be possible to qualify a negative answer to the question to the effect that In spite of this, however, the United jurisdiction would not be ousted by a Kingdom believes that important prac- mere challenge of the existence of the tical considerations militate in favour of contract, but the defendant would be a different solution. entitled to contest the jurisdiction by establishing that there was no contract.
First it examines the result of a negative answer. In its opinion, in such a case the An interpretation of Article 5 (1) denying jurisdiction of a court founded on Article jurisdiction where the alleged contract 5 (1) would be automatically ousted by itself is ultimately shown not to have any defendant who questions the existed would, however, mean that the existence of a contract in his defence. substantive claim, having been fully This would put it in the power of any litigated in one court, might have to be defendant who chose to do so to avoid tried over again in another court. the application of Anicie 5 ( 1 ) , simply by Although the questions which need to be assening that he had not consented to resolved to establish jurisdiction will be the alleged agreement or that for some the same as those required to determine other reason there had been no the substantive claim, the decision on agreement or no valid contract. Fur- jurisdiction would not establish a res thermore, the principle that a dispute of judicata, and it would be open to the the factual basis of a jurisdiction destroys plaintiff to seek to establish his claim that basis would appear to be equally afresh elsewhere, in the hope that applicable to other special jurisdictions, different procedures and rules of such as jurisdiction over tons under evidence, perhaps even a different choice Anicie 5 (3) with equally unacceptable of law, would lead to a different result. results.
In the opinion of the United Kingdom, Questions relating to the existence of a these practical considerations point contract are by no means always easy to decisivelv to the need to preserve a determine. The existence may be special jurisdiction in cases of this kind, disputed on a wide range of grounds, once is has been properly invoked. It ranging from purely factual issues to a refers, in this regard, to the judgment of mixture of fact and law and purely legal the Court in Case 73/77 (Sanders v Van issues. Since transactions for which der Putte [1977] ECR 2383 at p. 2392), Anicie 5 (1) is invoked will almost in which the Court stated that a dispute invariably have facets involving more as to the existence of the agreement than one country, these issues will more which forms the subject of the action often than not raise preliminary choice does not affect the applicability of Article of law problems.
JUDGMENT OF 4. 3. 1982 — CASE 38/81
It seems wasteful and undesirable to the Article 5 (1) over every action con- United Kingdom that complex issues of cerning the existence of a contract, this kind, which may involve prolonged where the claim relates to an obligation litigation and which go ultimately to derived from a relationship prima facie of the substance of the claim, should a contractual nature, and is bona fide nevertheless be fought out only on the brought by the plaintiff, then the United preliminary issue of jurisdiction and Kingdom considers that a defence possibly be litigated all over again when putting the existence of the contract in that issue has been determined. issue should not deprive the court of jurisdiction under Article 5 (1).
The arguments in favour of giving Article 5 a strict interpretation to avoid The Commission of the European multiple jurisdictions and to avoid Communities believes that the wording or depriving the defendant of the advantage Article 5 (1) does not imply that of defending himself in the courts of his jurisdiction under that provision must be domicile do not carry much weight, in challenged whenever there is a dispute as the United Kingdom's view. Whether or to the existence of a contract between not there is a contract, the situation will the parties or as to some other important presumably have links of some import- fact on which jurisdiction may be ance with the court whose jurisdiction is founded. On the contrary, the very- invoked, and what is more, the wording of this provision in the German defendant will be compelled to litigate in version, to the effect that not only the that court on all material issues, even rights arising from a contract but also though his defence may be directed only the contract itself may be the subject- to jurisdiction. matter of an action, indicates instead that the courts for the place of per- formance have jurisdiction to investigate the question of the existence of the contractual relationship, to the extent It is noteworthy that in a different, but necessary for the determination of related context, that of choice of the law questions of jurisdiction. applicable to contractual obligations, where the determination of the existence of a contract gives rise to problems, the solution proposed in the EEC Convention opened for signature in The rules appearing in Section 7 of the Rome on 19 June 1980 is that the Convention show that it is for the court existence and validity of a contract is to seised of a claim to examine of its own be determined by the law which would motion whether it has jurisdiction under govern it under the Convention if the the Convention. This examination contract were valid. commences with the determination of the facts which are relevant to jurisdiction and which must be assessed in law by the court seised, in order to decide whether they confer jurisdiction For the reasons stated, although it would according to the provisions of the not subscribe to the view that a court Convention. It follows, from the would necessarily have jurisdiction under principle that the court seised must
EFFER v KANTNER
establish of its own motion the facts which may be particularly important needed to confer jurisdiction upon it, when there is difficulty in determining that the jurisdiction of that court cannot the question of jurisdiction or when the be contested under the Convention solution of this question affects the merely because the defendant disputes evaluation of the substance of the case. those facts. Otherwise, the provisions of the Convention on jurisdiction could be evaded by an defendant who, even without any valid reason, disputed such jurisdiction. It may be argued that an examination of the question of jurisdiction under the Convention, by the court seised bv the plaintiff, is unacceptable for a defendant resident in another Contracting State On the other hand, it might conceivably where, as in this case, the examination be possible to impose on the plaintiff of that question overlaps with the certain minimum requirements in examination of the substance of the connection with proving the facts on action. In such a case, the substance of which jurisdiction may be founded, the application will be examined before subject to the penalty, in the event of the jurisdiction of the court seised by the default, that the court seised would plaintiff has been established in declare itself to have no jurisdiction. The accordance with the rules of the Commission notes that a requirement of Convention. this kind was attached to Article 17 but in principle the provisions of the Convention on jurisdiction do not lay down any formal condition or minimum According to the Commission, however, requirement as to the way in which this situation in no wav justifies an jurisdiction is to be proved. Article 20 of evaluation which diverges from the the Convention, however, takes account above-mentioned principles. An exam- of the fact that it may cause the ination by the court seised of the facts defendant great difficulty and conferring jurisdiction is of legal inconvenience to be sued before a importance for the assessment of the foreign court whose jurisdiction he application, both in relation to the disputes. identity of such facts and in many other cases. Furthermore, it should not be forgotten that the court seised may arrive at a decision simultaneously on jurisdiction and on the substance of the In order to avoid such results, the application in the course of the same oral Commission notes, this provision proceedings, even when each is provides in substance that the court determined by different facts. seised must of its own motion examine whether it has jurisdiction and cannot consider the facts alleged by the plaintiff, which are thought to confer jurisdiction, as having been established — for Neither the wording nor the context of example where the defendant does not the provisions of the Convention enter an appearance — but must ask the concerning jurisdiction gives rise to the plaintiff to prove them formally; the idea that there is no jurisdiction within same aniele further requires that the the meaning of the Convention where defendant should have the opportunity consideration of the question of to defend himself before the court seised, jurisdiction coincides wholly or partially
JUDGMENT OF 4. 3 1982 — CASE 3S/81
with consideration of the facts on which and Commercial Matters even when the the action is grounded. On the contrary, existence of the contract on which the there must be jurisdiction even in those claim is based is in dispute between the cases. Moreover, to decide otherwise parties. In order to determine where would be to introduce a distinction not jurisdiction lies, the court seised must materially justified, inasmuch as, in an ascertain of its own motion whether a action concerning the jurisdiction of the contract has been concluded between the court for the place of performance, for parties." example, the decision would depend on whether the place of performance was determined in the contract the existence Ill — Oral procedure of which was disputed or in a separate agreement. At the sitting on 29 October 1981 oral For these reasons, the Commission argument was presented by F. W. propose that the Court should reply as Beckensträter, Rechtsanwalt, Franktun follows to the question submitted by the am Main, for Effer SpA, and W.-D. Bundesgerichtshof: Krause-Ablass, Rechtsanwalt, Düssel- dorf, for the Commission of the "The plaintiff may invoke the European Communities. jurisdiction of the courts of the place of performance in accordance with Article 5 The Advocate General delivered his (1) of the Convention on Jurisdiction opinion at the sitting on 3 December and Enforcement of Judgments in Civil 1981.
Decision
By an order dated 29 January 1981 which was received at the Court Registry on 19 Februar)' 1981, the Bundesgerichtshof [Federal Court of Justice] referred to the Court for a preliminary ruling under the Protocol of 3 June 1971 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 a question on the interpretation of Anicie 5 (1) of that Convention, pursuant to which:
"A person domiciled in a Contracting State may, in another Contracting State, be sued:
(1) in matters relating to a contract, in the courts of the place of performance of the obligation in question;
EFFER v KANTNER
: The question was raised in the context of a dispute between Effer SpA of Castel Maggiore (Bologna, Italy) and Mr Kantner, a patent agent practising in Darmstadt (Federal Republic of Germany).
) Effer SpA, the appellant on a point of law in the main proceedings, is an undertaking which manufactures cranes. They were distributed in the Federal Republic of Germany through the Hydraulikkran undertaking (hereinafter referred to as "Hykra"). Effer developed a new machine and it was necessary to establish whether the sale of that machine was contrary to existing patent rights. After a discussion with Effer, Hykra commissioned Mr Kantner, patent agent, in December 1971 to carry out investigations in Germany for that purpose. The dispute between the parties to the main action concerns the question whether Hykra, which has since become insolvent, commissioned Mr Kantner in the name of Effer or in its own name. In order to obtain payment of his fees — the amount of which is not in dispute — Mr Kantner brought an action before a German court in December 1974. Effer denied the existence of a contractual relationship between it and the patent agent. Owing to the alleged absence of a contract, Effer argued that the German courts had no jurisdiction. The German courts found in favour of Mr Kantner, at first instance and on appeal. Effer then appealed on a point of law to the Bundesgerichtshof, which decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:
"May the plaintiff invoke the jurisdiction of the courts of the place of performance in accordance with Anicie 5 (1) of the Convention even when the existence of the contract on which the claim is based is in dispute between the parties?"
4 Mr Kantner, the respondent in the appeal on a point of law, and the Commission of the European Communities take the view that this question must be answered in the affirmative. The United Kingdom, although it does not wholly accept that argument, nevertheless considers that a dispute as to the existence of the contract does not prevent Article 5 (1) of the Convention from being applied, provided that the obligation is prima facie of a contractual nature and the action is bona fide brought by the plaintiff. Only Effer is of the opinion that the plaintiff may not invoke the jurisdiction of the courts for the place of performance of the contract when the existence of the contract on which the claim is based is in dispute.
JUDGMENT OF 4. 3. 1982 — CASE 38/81
5 It is established that the wording of Anicie 5 (1) of the Convention does not resolve this question unequivocally. Whilst the German version of that provision contains the words "Vertrag oder Ansprüche aus einem Vertrag", the French and Italian versions contain the expressions "en matière con- tractuelle" and "in materia contrattuale" respectively. Under these circum- stances, in view of the lack of uniformity between the different language versions of the provision in question, it is advisable, in order to arrive at the interpretation requested by the national court, to have regard both to the context of Article 5(1) and to the purpose of the Convention.
6 It is clear from the provisions of the Convention, and in particular from the preamble thereto, that its essential aim is to strengthen in the Community the legal protection of persons therein established. For that purpose, the Convention provides a collection of rules which are designed inter alia to avoid the occurrence, in civil and commercial matters, of concurrent litigation in two or more Member States and which, in the interests of legal certainty and for the benefit of the parties, confer jurisdiction upon the national court territorially best qualified to determine a dispute.
? It follows from the provisions of the Convention, and in particular from those in Section 7 of Title II, that, in the cases provided for in Article 5 ( 1 ) of the Convention, the national court's jurisdiction to determine questions relating to a contract includes the power to consider the existence of the constituent parts of the contract itself, since that is indispensable in order to enable the national court in which proceedings are brought to examine whether it has jurisdiction under the Convention. If that were not the case, Article 5 (1) of the Convention would be in danger of being deprived of its legal effect, since it would be accepted that, in order to defeat the rule contained in that provision it is sufficient for one of the parties to claim that the contract does not exist. On the contrary, respect for the aims and spirit of the Convention demands that that provision should be construed as meaning that the court called upon to decide a dispute arising out of a contract may examine, of its own motion even, the essential preconditions for its jurisdiction, having regard to conclusive and relevant evidence adduced by the party concerned, establishing the existence or the inexistence of the contract. This interpretation is, moreover, in accordance with that given in the judgment of 14 December 1977 in Case 73/77 (Sanders v Van
EFFER v KANTNER
der Putte [1977] ECR 2383) concerning the jurisdiction of the courts of the State where the immovable property is situated in matters relating to tenancies of immovable property (Anicie 16 (1) of the Convention). In that case the Court held that such jurisdiction applies even if there is a dispute as to the "existence" of a lease.
s It is therefore necessary to reply to the question put by the Bundes- gerichtshof that the plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5 (1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters even when the existence of the contract on which the claim is based is in dispute between the parties.
Costs
The costs incurred by the United Kingdom and the Commission of the European Communities, which submitted observations to the Court, are not recoverable; as these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the action pending before the national court, costs are a matter for that court.
THE COURT (First Chamber),
in answer to the question submitted to it by the Bundesgerichtshof by an order dated 29 January 1981, hereby rules:
The plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5 (1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in
OPINION OF MR REISCHL — CASE 38/81
Civil and Commercial Matters even when the existence of the contract on which the claim is based is in dispute between the parties.
Bosco O'Keeffe Koopmans
Delivered in open court in Luxembourg on 4 March 1982.
P. Heim G. Bosco Registrar Presiden: of lhe First Chamber
OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 3 DECEMBER 1981 '
Mr President, In this regard the Bundesgerichtshof Members of the Court, [Federal Court of Justice] wishes to know whether a plaintiff may invoke this The question on which I am giving my jurisdiction even when the existence of opinion today relates to Anicie 5 (1) of the contract on which the claim is based the Convention on Jurisdiction and the is in dispute between the parties. Enforcement of Judgments in Civil and Commercial Matters [hereinafter re- ferred to as "the Convention"], which provides: The appellant in the main proceedings is "A person domiciled in a Contracting an undertaking based in Italy which State may, in another Contracting State, manufactures cranes. They were be sued: distributed in the Federal Republic of Germany through the undertaking 1. in matters relating to a contract, 1 in Hydraulikkran of Böblingen, which has the courts for the place of per- apparently since — in October 1974 — formance of the obligation in gone into liquidation. In order to question." ascertain whether the sale of equipment developed by the appellant was contrary 1 — Translated from the German. to patent rights, a patent agent was to 2 — Trjmbtor't nole: The German version of Anicie 5 (I) carry out investigations in Germany. As states "wenn ein Vertrap ooer Ansprüche aus einem Vertrap den Gegenstand des Verfahrens bilden . . .". . far as I can understand from the order