C-266/85

Mr President, gation which characterizes the relationship, Members of the Court, or one of the many other obligations flowing from the contract. When called upon to resolve the question, the Court of Justice had no hesitation in holding that Article 5 (1) 'refers to the contractual obli- 1. Article 2 of the Convention of 27 gation forming the basis of the legal September 1968 on Jurisdiction and the proceedings' (judgment of 6 October 1976, Enforcement of Judgments in Civil and Case 14/76 De Bloos v Bouyer [1976] ECR Commercial Matters refers to the domicile 1497, at paragraph 11 of the Decision). of the defendant as the general criterion in determining which court shall have juris- diction. In addition to that rule — and not in derogation from it — Article 5 enables a plaintiff to bring proceedings before a different court, to be determined according The principle thereby established aroused to special criteria. The Court has held: 'This some doubt in academic circles, but, being freedom of choice was introduced in view expressed in unequivocal terms which leave of the existence in certain . . . cases of a no room for uncertainty, it was received particularly close relationship between a favourably by almost all the courts of the dispute and the court which may be most Contracting States (see the Digest of conveniently called upon to take cognizance Case-Law Relating to the European of the matter' (judgment of 6 October 1976, Communities, D Series, under I-5.1.1.-B). Case 12/76 Tessili v Dunlop [1976] ECR The fact that, a decade after that judgment, 1473, at paragraph 13 of the Decision). the Court should have received a request for Thus, in resolving disputes in matters a preliminary ruling to clarify yet again the relating to a contract, a creditor may sue a meaning of Obligation' under Article 5 (1) debtor domiciled in another Contracting might therefore seem surprising. As will be State 'in the courts for the place of seen, however, the request from the national performance of the obligation in question' court is explained by the particular rules of (Article 5 (1)). its domestic law and by a judgment of the Court subsequent to De Bloos which seems to introduce problems into the clearly defined framework mentioned above.

Rockenhausen against Mr Kreischer, a In the light of those explanations, it seems German national residing in the to me that the problem raised by the Netherlands, claiming payment on the fees Landgericht Kaiserslautern vanishes due to him for the preparation of plans for altogether. The order requesting the the construction of three houses in the preliminary ruling cannot be said to contain district of Rockenhausen. The Amtsgericht elements of fact or law such as would justify held that the place in which payment ought the Court revising its previous approach. to be made was the client's domicile, and declared the application to be outside its

. . to be determined And it is well known that the simplest way by reference to the contractual obligation to supply lacunae of this sort — that is, of which forms the actual basis of the legal resolving by indirect means the vexed proceedings (in this case a debt payable question of domestic territorial juris- under German law at the place where the diction — is to resort to an international defendant is domiciled), or by reference to forum, whose conclusions obviously take the obligation typical of the contract and priority. In the present case, for example, it characterizing the contractual relationship would be sufficient to read Article 5 (1) as if as a whole (that is to say the place where it referred, not to the obligation in dispute the architect has his practice and/or the site before the court (namely the payment of the of the planned building)?' fees), but to the obligation which charac- terizes the relationship, namely the architect's services, in order to infer As it stands, the question confuses two furthermore that performance of that obli- issues which, according to Article 5 (1), gation will necessarily take place in the ought to be kept apart, namely on the one architect's office; and it is precisely with hand the identification of the obligation, that result in view that the German court and on the other the determination of the wishes to know whether, in the dispute place in which it is to be performed. brought before it, it may refer to the However, the Court has already given criterion of the 'characteristic obligation' for replies to both parts of the question: the the purposes of the application of that first was resolved, as was seen above, by the article. De Bloos judgment, and the second by the Tessili judgment.

There can be no of conflict of laws what is the law applicable doubt that, for procedural purposes, the to the legal relationship in question and term 'obligation' in Article 5 (1) is define in accordance with that law the place autonomous and cannot vary according to of performance of the contractual obligation the different contractual relationships in in question.' dispute before a court. It is equally certain, moreover, that the doubts in German law as

to the place in which the fees are to be paid approach. On that point the United do not, in themselves, warrant a derogation Kingdom, the German and Italian from the general rule enshrined in the De Governments and the Commission of the Bloos judgment. In conclusion I can only European Communities have expressed repeat that, if the problem on which the opinions which should now be considered. Court is requested to give a ruling is appraised by reference to the facts of the case alone, a comprehensive solution is to be found in the De Bloos judgment and the 4. The United Kingdom maintains that, if Tessili judgment. the criterion of 'characteristic obligation' became the general rule, the application of Article 5 ( 1 ) would become more rational; it would serve to avoid the 'fragmentation' of

The [1982] ECR 1891). The plaintiff had put United Kingdom points out that that forward several claims based on the various solution would, furthermore, obligations arising under a contract of employment, and the Court held that in such a case the provisions of the Convention must be interpreted 'in such a way that the (a) allow the forum under Article 5 (1) to national court is not compelled to find that be used as a genuine alternative to the it has jurisdiction to adjudicate upon certain general forum under Article 2, and claims but not on others' and that therefore 'the obligation to be taken into account for the purposes of the application of Article 5 (1) . . . is the obligation which characterizes (b) enable the rules of the Convention of the contract' (paragraphs 18 and 20 of the 27 September 1968 to be harmonized Decision). with the aims and provisions of the Convention on the Law Applicable to Contractual Obligations, which was opened for signature in Rome on 19 In the present case, however, there is no June 1980. doubt that what is at issue is a contract (other than a contract of employment) for services of an intellectual nature, and that the plaintiffs claim is founded on a single In the view of the German Government, obligation.

SHENAVAI v KREISCHER

Lastly, the Italian Government and the a foreign country, are to override the Commission contend that, far from being in lex contractus (Article 6 (1)). conflict, the principles set out in the De Bloos and Ivenel judgments are com- plementary. The first is the general rule whilst the second applies only in circum- stances analogous to those which caused it to be adopted in the first place, namely an Having said that, I must observe that, employment relationship (or more generally, although it correctly defines the relationship according to the Commission, any between De Bloos and Ivenel in terms of relationship where there is disparity of rule and exception, the Commission's line of bargaining power between the parties) and a argument attributes too wide a scope to the number of claims which a plaintiff bases on principle laid down by the second judgment; various obligations arising under the same I do not think that the principle may be contract. applied outside the context of an employment relationship; in particular, it does not apply to dealings which are char- acterized merely by the economic inferiority

OPINION OF MR MANCINI —CASE 266/85

but the place in which the harmful event with the rationale of Article 5 which, as the occurs or the parties' domiciles. Tessili judgment establishes, is to enable a creditor to commence proceedings before The question arises whether insurance may the court of the place which, from the point be considered — for present purposes, of of view of court proceedings, is most closely course — to be representative of the whole connected with the subject-matter of his range of contracts concluded between claim. parties having disparate bargaining power, including contracts for professional and It follows from the foregoing that the other services. In my opinion it may and the requirement in Article 5 (1) that 'the obli- conclusion to be drawn is that where such gation to be taken into account' be 'that contracts are concerned, the 1968 which corresponds to the contractual right Convention does not provide for a single on which the plaintiff's action is based' forum for all conceivable disputes which (De Bloos judgment, cited above, at may arise from the contractual relationship, paragraph 13 of the Decision) also applies but leaves the weaker party with an option. to disputes concerning contracts of the kind That conclusion is, moreover, consistent at issue in the present case.

6. In view of all the foregoing considerations I propose that the Court should give the following answer to the question referred to it by the Landgericht Kaisers- lautern in its order of 5 March 1985 in the proceedings brought by Mr Shenavai against Mr Kreischer: