C-133/81

JUDGMENT OF THE COURT 26 MAY 1982'

Roger Ivenel v Helmut Schwab (reference for a preliminary ruling from the French Cour de Cassation)

(Brussels Convention — Place of performance of the obligation)

Case 133/81

Convention on Jurisdiction and the Enforcement of Judgments — Special jurisdiction — Court for the piace of performance of a contractual obligation — Claims based on different obligations resultingfroma contract of employment — Obligatton to be taken into account for the purpose ofjurisdiction — Obligation characterizing the contract in question (Convention of 27 September 1968, Art. J (1))

The obligation to be taken into account under a contract of employment as a for the purposes of the application of representative binding a worker to an Article 5 (1) of the Convention of 27 undertaking is the obligation which September 1968 in the case of claims characterizes the contract. based on different obligations arising

HELMUT SCHWAB, Oeuingen (Federal Republic of Germany),

on the interpretation of Anicie 5 (1) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,

THE COURT

composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), Lord Mackenzie Stuart, A. O'Keefte, T. Koopmans, A. Chloros and F. Grėvisse, Judges,

Advocate General; G. Reischl Registrar: P. Heim

gives the following

that the plaintiff was an independent was ordinarily resident, namely contractor and on the other that Strasbourg. according to the Convention of Brussels of 27 September 1968 the Court having Upon appeal by Helmut Schwab the jurisdiction was that for the place of Cour d'Appel, Colmar, by judgment of performance of the obligation in 10 October 1978 confirmed the question, in this instance the place of jurisdiction ratione mateńae of the payment of the commission, namely Conseil de Prud'hommes but considered Oettingen. that the Conseil had no jurisdiction ratione loci. In that respect the Cour d'Appel considered that having regard to When the action was before the Conseil the judgment of the Court of Justice of de Prud'hommes Article 5 (1) of the 6 October 1976 in Case 14/76 de Bloos Brussels Convention was worded as [1976] ECR 1497 the obligation to be follows: taken into account was that which corresponded to the contractual right on "A person domiciled in a Contracting which the plaintiffs action was based. In State may, in another Contracting Sute, the case in point that was the obligation be sued: to pay the commission and allowances claimed by lvenel from Schwab who was (1) In matters relating to a contraa, in ordinarily resident in the Federal the courts for the place of per­ Republic of Germany. Since both in formance of the obligation in French and German law such a payment question." was due at the address of the debtor and not of the creditor the Conseil de Prud'hommes, Strasbourg, had no 2. By judgment of 17 April 1978 the jurisdiction ratione loci. Conseil de Prud'hommes dismissed the two objections. 3. Roger lvenel thereupon appealed in cassation against the judgment of the With regard to the objection radone Cour d'Appel. mateńae it found that the plaintiff was bound to the defendant by a contract of In its judgment of 2 April 1981 the Cour employment as a representative. de Cassation considered that since the proceedings related to the performance of a contract for representation involving As regards the objection ratione loci the mutual obligations, some of which at Conseil de Prud'hommes considered that least were performed in France, the the concept "place of performance of the question of the place of performance of obligation in question" contained in the obligation within the meaning of Article 3 (1) of the Brussels Convention Article 5 (1) of the Brussels Convention must be understood as referring to the raised a serious difficulty of interpret­ place of performance of the main or ation. The Cour de Cassation therefore characteristic obligation of the contract. decided to stay the proceedings until the In the case of a contract of employment Court of Justice had given a ruling on as a representative the place of per­ this matter. formance of the work was thai where the representative had his office, collated orders and attended to their execution. 4. The judgment of 2 April 1981 The court having jurisdiction under referring the matter to the Court was Article 5 was therefore u. this case the received at the Court Registry on 3 June court for the place where Roger lvenel 1981.

II — Summary of the written Mr Ivenel considers that the obligation observations lodged with to pay sums due to an employee in the Court return for his work, which is simply the result of the proper performance of the work, does not satisfy the condition of independence any more than debts Roger Ivenel, the plaintiff in the main arising from breach of the contract. Its action, first of all refers to the judgment legal basis is constituted by mandatory of the Court of 6 October 1976 in Case legal rules appertaining to public policy 14/76 de Bloos [1976] ECR 1497. In that and relating to the performance of the judgment the Court decided thai the contract of employment by the pames. In term "obligation" in Anicie 3 (1) of the the same way Mr Ivenel had to comply Brussels Convention referred to the with his period of notice in France and contractual obligation on which the the sum claimed under that head is plaintiff's claim was based and that in a intended to compensate for the case where the plaintiff asserted the righi emplover's disregard of that obligation to be paid damages or sought the Consequently the obligation to discharge of the contract by reason ot compensate, arising from that breach of the wrongful conduct of the other party, contract, falls within the lunsdiction of the obligation referred io in Anicie 5 Ml the coun having lunsdiction in regard to was still that which arose under the the performance of the original contract and the non-performance of obligation.

IVENEL v SCHWAB

That point of [1976] ECR 1473 the place of per- view is moreover in conformity with the formance of the obligation in question judgment of the Court in Case 14/76 de within the meaning of Article 5 (1) of the Bloos, cited above. Brussels Convention is to be determined in accordance with the law which governs the obligation in question Mr Schwab states in addition that according to the rules of conflict of laws according to the terms of the last of the court before which the matter is paragraph of Article 1247 of the French

As representative so that the place where he regards the application of Article 5 (1) of carries out his work determines the Convention the consequences of jurisdiction. In that respect he points oui breach of a contractual obligation musi thai the plaintiff had been engaged orally be treated in such a case as the in Germany and thai he was directly consequences of the main obligation. subject to the management of the under- taking established in Oettingen as That interpretation is in conformity with regards his work as a representative. one of the objectives of the Convention Further, Mr Ivenel received his salary in referred to by the Court in paragraph 9

The Commission points out that certain The Commission recommends that that difficulties which, as in this case, rule be taken into account in deciding national courts encounter in applying the present case. Article 5 (1) of the Convention have their origin in paragraph 17 of the judgment in de Bloos which calls upon the national court in actions for the In that connection it refers to a judgment payment of compensation by way of of the Cour d'Appel, Angers, of 29 damages to ascertain whether, under the January 1980 concerning a contract of law applicable to the contract, an employment of the same kind as that at independent contractual obligation or an issue in this case and made between a obligation replacing the unperformed Belgian employer and a French rep- contractual obligation is involved. It resentative (Van Pelt v Jedre, Revue considers that the Court could not have Critique de Droit International Privé, intended in that paragraph to mean 1981. p. 118). It appears from that damages bv way of compensation for the judgment that claims on the one hand breach of the contract. for the pavment of commission and sums due in respect of paid holidays and on the other for the payment of compensation in lieu of notice, in respect The clear and simple solution set out in of goodwill and by way of damages paragraph 16 of the judgment should be constitutes an entity which it is difficult adopted, namely that of the main to divide into separate pans. From the obligation which the contract places on point of view of theory, such a solution, the defendant and the non-performance which is the result of a synthetic view of of which is relied upon in support of the the various contractual obligations, claim for damages or for the dissolution constitutes a more reliable basis for of the contract determining the place of performance of the obligation in question than an analytical approach to which the theory of the independence of obligations The Commission goes on to observe that belongs. Moreover, it has the merit of according to Article 6 of the Convention being in conformity with the objective of on the Law applicable to Contractual the Convention which is to concentrate Obligations ot' 1" lune OSI (Official the Įurisdiction of courts.

- That question was raised in proceedings between Mr Ivenel, who resides in Strasbourg, and the undertaking Schwab Maschinenbau, whose place ot establishment is at Oettingen in Bavaria, relating to an alleged breach ot a contract for representation which gave rise to a claim for payment ot commission, compensation for goodwill, in lieu of nonce and m respect ot paid holidays.

JUDGMENT OF 26. 5. 1982 — CASE I33/B1

3 The Conseil de Prud'hommes, Strasbourg, before which the claim was brought, dismissed the two objections founded on lack of jurisdiction which were raised by Mr Schwab. It based its jurisdiction ratione mateńae on the fact that in its opinion the contract between the parties was to be considered as a contract of employment. As regards its jurisdiction ratione loci it considered that, according to Article 5 (1) of the Convention, in matters of contract an action might be brought against a defendant ordinarily resident in the territory of another Member State before the court for the place where the obligation was, or was to be, performed and that in the case in point the obligation to be taken into account was that of the work carried out by the representative who had his office in Strasbourg where he collated orders and attended to their execution.

* When an appeal by Schwab was brought before the Cour d'Appel, Colmar, that court, whilst confirming the judgment of the Conseil de Prud'hommes in so far as it found that there was a contract of employment, set aside that judgment for lack of jurisdiction ratione loci. The Cour d'Appel considered that the obligation to be taken into account for the purpose of applying Anicie 5 (1) of the Convention was that which constituted the basis of the court action. In the case in point that obligation was the payment of the commission and other amounts claimed from Schwab, which were payable at the address of the debtor and not the creditor.

i: It is appropriate to examine that problem in the light of the objectives of the Convention and the general scheme of its provisions.

ii Adoption of the special rules of jurisdiction as contained in Articles 5 and 6 of the Convention is justified inter alia by the fact that there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it. The report drawn up by the committee of experts (Official Journal 1979, C 59, p. 1) which drafted the text of the Convention stresses that connection by stating inter alia that the court for the place of performance of the obligation will be useful in proceedings for the recovery of fees since the creditor will have a choice between the courts of the State where the defendant is ordinarily resident by virtue of the general provisions contained in Anicie 2 of the Convention and the courts of another State within whose jurisdiction the services were provided, particularly where, according to the appropriate law, the obligation to pay must be performed where the services were provided.

JUDGMENT OF 26. 5. 1982 — CASE U3/8I

i2 The above-mentioned report also refers to the reasons why those drafting the Convention did not consider it appropriate to insen into the Convention a provision giving exclusive jurisdiction in contracts of employment. According to the report it is desirable as far as possible for disputes to be brought before the courts of the State whose law governs the contract whereas at the time the Convention was being drafted work was in progress to harmonize the application of the rules of employment law in the Member States of the Community. The report concludes that at present the existing provisions of the Convention, such as Article 2 stipulating the forum for the place where the defendant is ordinarily resident and Article 5 (1) the žorum for the place of performance of the obligation, are likely to satisfy the relevant interests.

16 It emerges from an examination of the provisions of the Convention that in establishing special or even exclusive jurisdiction for insurance, instalment sales and tenancies of immovable property those provisions recognize that the rules on jurisdiction, too, are inspired by concern to afford proper protection to the party to the contract who is the weaker from the social point of view.

17 Those factors must be taken into account in answering the question which has been put to the Court.

I8 In a case such as the one in point, where the national court has before it claims relating to obligations under a contract for representation, some of which concern remuneration due to the employee from an undertaking established in one State and others concern compensation based on the manner in which the work has been done in another State, it is necessary to interpret the provisions of the Convention in such a way that the national court is not compelled to find that it has jurisdiction to adjudicate upon certain claims but not on others.

i9 Such a result would be even less compatible with the objectives and general structure of the Convention in the case of a contract of employment tor which, as a general rule, the law applicable contains provisions protecting the worker and is normally that of the place where the work characterizing the contract is carried out.

- It follows from the foregoing considerations, taken as a whole, that the obligation to be taken into account for the purposes of the application ot Article 5 (1) of the Convention in the case of claims based on different obligations arising under a contract of employment as a representatie binding a worker to an undertaking is the obligation which characterizes the contract.

The obligation to be taken into account for the purposes of the application of Article 5 (1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters in the case of claims based on different obligations arising under contract of employment as a representative binding a worker to an undertaking is the obligation which characterizes the contract.

Menens de Wilmars Bosco Touffait Due

Mackenzie Stuart O'Keeffe Koopmans Chloros Grévisse

Delivered in open court in Luxembourg on 26 May 1982.

P. Heim J. Mertens de Wilmars Registrar Presidem