C-34/82

Z U I D NEDERLANDSE AANNEMERS VERENIGING [South N e t h e r l a n d s C o n t r a c t o r s ' Association], an association e n d o w e d with legal personality a n d having its registered office in M a a s t r i c h t a n d its administrative office at H e e z e , in t h e province of N o r t h Brabant, t h e N e t h e r l a n d s ,

on the interpretation of Article 5 (1) of the Convention,

THE COURT

composed of: J. M e r t e n s d e Wilmars, President, A. O'Keeffe a n d U . Everling (Presidents of C h a m b e r s ) , G. Bosco, T . K o o p m a n s , K. Bahlmann and Y. Galmot, J u d g e s ,

Advocate G e n e r a l : G. F. M a n c i n i Registrar: P. H e i m

gives the following

I — Facts and p r o c e d u r e Under Article 36 of the document of constitution, the Association may take decisions, which are binding on its A — The main action members and which are lodged with the Ministry for Economic Affairs of the (a) The facts Netherlands in accordance with the Wet Economiche Mededinging [Law on By writ of 12 May 1978, the respondent Economic Competition]. Among those in the appeal on a point of law, Zuid decisions are included the "Guidelines Nederlandse Aannemers Vereniging on private tenders for public works and [South Netherlands Contractors' Associ- utilities", which constitute uniform rules ation] (hereinafter referred to as "the on price regulation and lay down a Association"), sued the appellant in the certain number of common rules, to be appeal on a point of law, Martin Peters complied with by any of the Bauunternehmung GmbH, a construc- Association's members which tender for tion company (hereinafter referred to as "any work" within the Association's area "Peters"), before the Arrondissements- of activity, on the submission by a rechtbank [District Court], 's-Hertogen- member of a tender for work and on the bosch, for the payment of HFL 112 725 relations between the contractor whose together with statutory interest and tender is accepted and the Association. costs, by virtue of a binding decision of the Association adopted under Article 16 Thus under the provisions contained in of the document of constitution of the those Guidelines, any member of the Association, of which Peters is a Association must inform the latter of its member. intention to tender for work (Article 3 of the Guidelines) and, in the event of The Association is an association under several members' intending to tender for Netherlands law which has legal perso- the same work, the Association is to nality and its members are the under- organize a meeting of the members takings which pursue their activities in concerned, presided over by one of its the building industry in the provinces of officials (Article 4 of the Guidelines). At Limburg, North Brabant, Zeeland and that meeting, the members of the part of the province of Gelderland. Association may agree to include in According to the court making the order their tenders "compensation and contri- for reference, the object of the butions" intended to cover either "ex- Association is "to promote the economic, penses and work of members connected

However, by judgment of 2 March 1979, In this case Peters, a member of the the Arrondissementsrechtbank, 's-Her- Association, tendered for and was sub- togenbosch, dismissed the objection of sequently awarded work to be carried lack of jurisdiction raised by Peters out at Kerkrade, that is to say within the taking the view that the dispute arose out Association's area of activity. In of a contract and that it therefore had application of the provisions of the jurisdiction under Article 5 (1) of the Guidelines, a meeting was organized by Convention of 27 September 1968, the Association on 3 May 1977, at which which provides: "compensation and contributions" within the meaning of those Guidelines were determined by the Association's mem- bers. "A person domiciled in a Contracting State may, in another Contracting State, be sued: Although it was a member of the Association, Peters did not notify it of its intention to tender for the work at 1. in matters relating to a contract, in Kerkrade and did not attend the meeting the courts for the place of per- on 3 May 1977. After Peters had started formance of the obligation in the work, the Association claimed from question;". Peters payment of the sums in question. Peters expressly disputed that it was under any obligation in that respect and refused to pay to the Association the Peters appealed against that decision to outstanding sums which had been the Gerechtshof [Regional Court of determined pursuant to the provisions of Appeal], 's-Hertogenbosch, but by the Guidelines. judgment of 7 May 1980 that court

confirmed the judgment of 2 March virtue of a legal transaction entered into 1979, considering inter alia at paragraphs for that purpose? Does it make any 7 and 9 of the grounds of its judgment difference whether the obligations in that: question arise simply from the act of becoming a member, or from that act in Paragraph 7: "The alleged obligation conjunction with one or more decisions upon Peters to pay the amounts claimed made by organs of the association?" in the main action must be regarded as a matter relating to a contract within the meaning of the Convention. The alleged B — Written procedure obligation to pay the amounts in The request for a preliminary ruling question arises from the relationship submitted by the Hoge Raad was between the Association and Peters received at the Court Registry on 21 created by the latter's joining the January 1982. Association as a member.

In order to determine whether that ground was well founded, the Hoge Upon hearing the report of the Judge- Raad stayed the proceedings by Rapporteur and the views of the judgment of 15 January 1982 and Advocate General, the Court ordered the considered it necessary to refer to the following measures of inquiry under Court of Justice the following question Article 45 of the Rules of Procedure: for a preliminary ruling: 1. The Zuid Nederlandse Aannemers "Does Article 5 (1) of the Convention Vereniging is requested to lodge the apply to claims which are made by an following documents by 15 December association constituted under private law 1982: possessing legal personality against one of its members in a matter relating to The document of constitution of the obligations in regard to the payment of a Association; sum of money and which have their basis The "Guidelines", together with the in the relationship between the parties by date on which they were drawn up; virtue of membership, such relationship arising from the defendant party's A statement of the date on which joining the association as a member by Peters joined the Association.

In relation to the interpretation of the provisions of the Convention of 27 II — W r i t t e n o b s e r v a t i o n s sub- September 1968, Peters argues that the mitted to the C o u r t Court of Justice has used two methods alternately: on the one hand, the method of independent interpretation, and on the A — Observations submitted by the other, interpretation by reference to the appellant in the appeal on a point of national legal concept applicable to the law legal relationship at issue before the court of a Contracting State, also known The company Martin Peters states by as interpretation according to the lex way of a preliminary observation that causae. It concludes that whichever of the there are different views of the legal two methods is finally applied, the nature of an association in the different interpretation to be given to Article 5 (1) national legal systems in the Community. of the Convention in this case will lead to the exclusion of the subject-matter in the main action from the scope of that Certain legal systems, including the article of the Convention. French, Italian and Belgian systems, are governed by the "contractual concept", which regards an association as an 1. The method of interpretation based agreement entered into between the on the independent nature of the founder members and which is given Convention is the one which the Court substance by a document of constitution has used most frequently (for example: which may in law be assimilated to a judgment of 14. 10. 1976 in Case 29/76 contract. According to that viewpoint, LTU Lufitransportuntemehmen GmbH & where a new member joins an association Co. KGv Eurocontrol[1976] ECR 1541). which is already in being, this also gives It leads to an analysis of the provision to rise to a contractual relationship, and the be interpreted by reference to the decisions adopted by the association are objectives and scheme of the Convention deemed to be the result of the agreement on the basis of the legal concepts by which the association was created. peculiar to the Convention itself.

those defined in principle in Article 2 — Peters considers that this analysis is are based on the idea that there is a confirmed by the content of other direct connecting factor between the conventions concluded in the framework dispute and the court which is called of Article 220 of the EEC Treaty and upon to decide it and must, according to especially by Article 1 (2) (e) of the Peters, be interpreted narrowly in order, Convention on the Law Applicable to as the Court stressed in paragraphs 9 and Contractual Obligations, opened for 10 of its judgment of 6 October 1976 in signature in Rome on 19 June 1980, Case 14/76 De Bloos v Bouyer [1976] which provides that the rules of the ECR 1497, at p. 1508, to avoid Article 5 Convention are not to apply to being interpreted widely so as to confer "questions governed by the law of jurisdiction upon a number of courts in companies and other bodies corporate or relation to one and the same legal unincorporate such as the creation, by relationship between the parties. registration or otherwise, legal capacity, internal organization or winding-up of companies and other bodies corporate or unincorporate . . .". According to Peters, that restrictive view is confirmed by the Jenard Report 1 which stresses that the authors of the Convention intended, because of the Because of the different views under the need to find a compromise between the various national laws as to the legal very different national legal systems, to nature of an association, it was necessary limit the courts which have jurisdiction to include that provision and, more in relation to disputes arising out of generally, to exclude from the scope of contractual obligations to the "special Article 5 (1) of the Convention of 27 forum of the place of performance", as September 1968 disputes arising out of defined under German law (Paragraph the performance of obligations under a 29 of the German Zivilprozeßordnung relationship deriving from membership of [Code of Civil Procedure]). an association.

relationship which forms the subject- B — Observations submitted by the matter of the main action is contractual defendant in the appeal on a point in nature would have to be resolved in of law accordance with the law applicable to the legal relationship in question, that is to The Association points out first, on the say Netherlands law. As has already been one hand, that the obligation in question emphasized, that system of law is, in the main action must be performed in according to Peters, based on the the Netherlands, and, on the other, that institutional idea of the association which the substantive law applicable to the case entails the view that obligations arising before the national court is Netherlands out of a decision taken by an association law, by reason both of the tacit choice of do not fall within the concept of the applicable law made by the parties "matters relating to a contract" within upon Peters' becoming a member of the the meaning of Article 5 (1) of the Association and of the unwritten Convention. principle of Netherlands private inter- national law according to which the For those reasons, and whatever may be relations between an association the method of interpretation applied by constituted under Netherlands law and the Court in relation to the provision in one of its members are governed by question of the Convention of 27 Netherlands law, whatever the member's September 1968, Peters puts forward the nationality or wherever such member is view that the question referred to the in fact established. Court must be answered as follows :

In its judgment of 6 purpose. In that respect, it is irrelevant October 1976 in Case 12/76 Industrie whether the obligation in question arises Tessili Italiana Como v Dunlop [1976] simply from the fact of becoming a ECR 1473, it applied the method of the member or from that fact in conjunction lex causae, stating that the expression with one or more decisions taken by "place of performance" involved a organs of the association." reference to the national law applicable;

PETERS v ZNAV

Community. The Association further considers that this analysis is confirmed by the wording of Article 1 (2) (e) of the Convention on A study of the Jenard Report makes it the Law Applicable to Contractual clear that Article 5 (1) represents a Obligations, opened for signature in compromise between the different Rome on 19 June 1980. The object of national legal systems, probably inspired that provision is expressly to exclude by German law as regards the rule of from the scope of the Convention ". . . jurisdiction thus defined — court of the questions governed by the law of place of performance of the obligation companies and other bodies corporate or — but without its being possible to state unincorporate such as the creation, by that the concept of "matters relating to a registration or otherwise, legal capacity, contract" within the meaning of that internal organization or winding-up of provision is also directly inspired by the companies and other bodies corporate or concepts of that legal order. unincorporate . . .".

Such a study obligations, such as agreements in family in fact shows that the national laws are law, the law of procedure, or public law. divided between two theories of the legal Moreover, it should be emphasized that nature of an association and of according to Paragraph 22 of the membership thereof, known as the Zivilprozeßordnung, the court which has "institutional" and the "contractual" jurisdiction in a dispute relating to the theories, of which there are, moreover,

many variations. It is therefore C — Observations of the Commission impossible to derive a concept common to the laws of the Member States which After setting out the facts which give rise would be capable of imposing in an to the dispute in the main action, the unambiguous manner an interpretation Commission observes that according to of the notion of "matters relating to a the Jenard Report the objective of the contract" within the meaning of the provisions of the Convention of 27 Sep- Convention in relation to its possible tember 1968 is to facilitate the free application to the performance of an movement of judgments in the obligation arising out of the relationship Community by laying down rules of resulting from membership of an jurisdiction common to all the Member

2. In the event of the Court's adopting case. The Commission further stresses the method of interpretation according that in its case-law prior to the judgment to the lex causae, the Association of 6 October 1976 in Case 12/76 contends that Netherlands law must be Industrie Tessili Italiana Como v Dunlop applied in this case. [1976] ECR 1473, the Court always adopted that method. In short, the Association reaches the conclusion, on the one hand, that the In support of recourse to that method of first part of the question submitted by interpretation the Commission further the Hoge Raad must be answered in the relies on the diversity of the national affirmative, to the effect that the concept legal systems and of academic writing on of "matters relating to a contract" the legal nature of an association and the referred to in Article 5 (1) of the Brussels relationship resulting from membership Convention of 27 September 1968 thereof.

PETERS v ZNAV

wherever they reside, and finally, on the However, according to the Commission fact that neither academic writing nor the distinction between those two the text of the Convention contradict theories is of little importance in this such an interpretation. case, for so far as the rules of jurisdiction are concerned Article 22 of In relation to the answer to the second the German Zivilprozeßordnung lays part of the question submitted to the down a special rule for the determination Court by the Hoge Raad, the of disputes concerning the payment of a Commission considers that it is debt owed to an association, which immaterial whether the obligations in confers jurisdiction upon the court of the question arise simply from the act of place in which the association has its becoming a member or are the result seat. both of that act and of one or more decisions adopted by the organs of the For that reason the Commission takes association. It bases that interpretation the view that it would be a mistake to on the need to lay down Community attach too much importance to the rules of jurisdiction which enable the different views of the nature of an court before which an action is brought association in the various national laws, easily to determine whether it has for discussion among authors on this ; jurisdiction without having to examine subject was not intended to elucidate the details of the case before it and the questions of jurisdiction but was parties before that court to rely upon the conducted in order to answer the rules laid down in the Convention as question whether the general rules of the soon as the proceedings are commenced. law of contract are applicable to disputes which call in question the relationship resulting from membership of an

JUDGMENT OF 22. 3. 1983 — CASE 34/82

the Convention must be interpreted the claim must arise directly out of a widely both because of the origin and contract. terms of that provision and on the ground of practical requirements. 2. A wide interpretation of Article 5 (1) of the Convention also finds support in the general scheme of the rules of special 1. It is clear from Chapter IV, Part B, jurisdiction laid down in Article 5, which Section 2 of the Jenard Report that the is clearly intended to establish a list provisions of Article 5 (1) of the covering all the important situations in Convention are based on the one hand which from experience at national level on rules of procedure and jurisdiction the need for a rule of special jurisdiction defined by the national laws which all has become apparent. Thus the authors take a fairly wide view of the concept of of the Convention intended to contrast matters relating to a contract (which may matters relating to a contract (subpar- cover other matters covered by the law agraph (1)) with matters relating to tort of obligations) and on the other hand on or delict (subparagraph (3)) in order to international conventions concluded establish a rule of special jurisdiction in between certain of the Member States of favour of each. the Community (the Benelux Treaty, conventions concluded between Belgium, France, the Netherlands and Italy), Those rules would be pointless if, which in relation to jurisdiction contain through a restrictive interpretation of the wide-ranging provisions which are not provisions in question, certain aspects of limited to actions derived directly from a one of the subjects covered by the special contract. rules of jurisdiction were to be excluded from the system thus defined.

PETERS v ZNAV

only by the dissolution of the contract of that purpose) between the member and membership. the association.

JUDGMENT OF 22. 3. 1983 — CASE 34/82

III — Oral procedure of the Rotterdam Bar, acting as Agents for the Commission of the European At the sitting on 11 January 1983, oral Communities. argument was presented by E. Korthals Altes of The Hague Bar, for Zuid The Advocate General delivered his Nederlandse Aannemers Vereniging, and opinion at the sitting on 1 February Erich Zimmermann and W.J.L. Calkoen, 1983.

Decision

1 By a judgment dated 15 January 1982 which was received at the Court on 21 January 1982, the Hoge Raad der Nederlanden [Supreme Court of the Netherlands] referred to the Court of Justice 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 (hereinafter referred to as "the Convention") two questions on the interpretation of Article 5 (1) of the Convention.

2 Those questions arose in the course of a dispute between Zuid Nederlandse Aannemers Vereniging (South Netherlands Contractors' Association), here- inafter referred to as "the Association", an association under Netherlands law, having its registered office in Maastricht and its administrative office at Heeze (North Brabant) and one of its members, Martin Peters Bauun- ternehmung GmbH (hereinafter referred to as "Peters"), a company incor- porated under German law having its registered office in Aachen, in the Federal Republic of Germany, concerning the recovery of sums payable by the latter by virtue of an internal rule adopted by the organs of the association and binding on its members.

2. Does it make any difference whether the obligations in question arise simply from the act of becoming a member, or from that act in conjunction with one or more decisions made by organs of the association?"

1. F i r s t q u e s t i o n

7 Article 5 of the Convention makes provision in a number of cases for a special jurisdiction which the plaintiff may choose, in derogation from the general jurisdiction provided for in Article 2 (1) of the Convention.

8 According to Article 5 (1) of the Convention: "A person domiciled in a Contracting State may, in another Contracting State, be sued: (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question."

JUDGMENT OF 22. 3. 1983 — CASE 34/82

9 Thus the concept of matters relating to a contract serves as a criterion to define the scope of one of the rules of special jurisdiction available to the plaintiff. Having regard to the objectives and the general scheme of the Convention, that it is important that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, that concept should not be interpreted simply as referring to the national law of one or other of the States concerned.

PETERS v ZNAV

i4 Since under national legal systems it is usually stipulated that the place in. which the association is established is to be the place of performance of obligations arising out of the act of becoming a member, the application of Article 5 (1) of the Convention also has practical advantages: the court for the place in which the association has its seat is in fact usually the best fitted to understand the documents of constitution, rules and decisions of the association, and also the circumstances out of which the dispute arose.

is Under those circumstances the answer to the first question should be that the obligations in regard to the payment of a sum of money which have their basis in the relationship between an association and its members by virtue of membership must be regarded as "matters relating to a contract" within the meaning of Article 5 (1) of the Convention.

2. S e c o n d q u e s t i o n

i6 The national court asks the Court of Justice to state whether, in order to determine whether or not an obligation of a member towards an association falls within "matters relating to a contract", a distinction should be drawn according to whether the obligation in question arises simply from the act of becoming a member or results from that act in conjunction with a decision made by an organ of the association.

i7 It should be noted that multiplication of the bases of jurisdiction in one and the same type of case is not likely to encourage legal certainty and effective legal protection throughout the territory of the Community. The provisions of the Convention should therefore be interpreted in such a way that the court seised is not required to declare that it has jurisdiction to adjudicate upon certain applications but has no jurisdiction to hear certain other applications, even though they are closely related. Moreover, respect for the purposes and spirit of the Convention requires an interpretation of Article 5 which enables the national court to rule on its own jurisdiction without being compelled to consider the substance of the case.

in answer to the questions submitted to it by the Hoge Raad der Neder- landen by judgment of 15 January 1982, hereby rules:

1. Obligations in regard to the payment of a sum of money which have their basis in the relationship existing between an association and its members by virtue of membership are "matters relating to a contract" within the meaning of Article 5 (1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

2. It makes no difference in that regard whether the obligations in question arise simply from the act of becoming a member or from that act in conjunction with one or more decisions made by organs of the association.

Mertens de Wilmars O'Keeffe Everling Bosco Koopmans Bahlmann Galmot

Delivered in open court in Luxembourg on 22 March 1983.

P. Heim J. Mertens de Wilmars Registrar President