C-9/87
ECLI:EU:C:1987:575
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ARCADO v HAVILAND
O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 17 December 1987
My Lords, Agecobel. As such successor it became party to an appeal from the judgment of the Tribunal de commerce to the Court of Appeal in Brussels in which the amount of commission and of the compensation SA Haviland, which is incorporated and has awarded at first instance are in issue. its registered office in France, appointed (it Haviland objected in reply that the claim seems in 1967) SA Agecobel as its agent for being made for compensation for unlawful the sale of Haviland's products in Belgium termination was a matter 'relating to tort, and Luxembourg. By 1978 Haviland had, it delict or quasi-delict' within the meaning of alleges, received many complaints about Article 5 (3) of the Convention and that the Agecobel and accordingly it terminated the Brussels courts had no jurisdiction. agency agreement with effect from the end of October 1978. Agecobel brought proceedings against Haviland in the Tribunal de commerce in Brussels for outstanding commission and for compen- sation for the unlawful termination of the The Court of Appeal took the view that agreement. Haviland objected that the court whereas the claim for payment of had no jurisdiction to hear the claim and commission clearly suggested that the counterclaimed for monies due on unpaid proceedings were contractual in nature invoices. there was room for doubt as to whether a claim for compensation for unlawful repudiation was within Article 5 (1) of the Convention if that Article was to be given an independent meaning. If it was to be construed in accordance with Belgian or The Tribunal de commerce accepted that it French law it seemed that the claim would had jurisdiction by virtue of Article 5 (1) of properly be categorized as relating to a the Convention of 27 September 1968 on contract. Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ('the Convention') and ordered Haviland to pay compensation and outstanding commission. Haviland was held entitled to the monies due on unpaid invoices. Accordingly the Court of Appeal asked for a preliminary ruling on the question:
SPRL Arcado, apparently incorporated in and having its registered offices in Belgium, has, in a way which is not explained, 'Are proceedings relating to the unlawful succeeded to the rights and obligations of repudiation of an (independent) commercial
OPINION OF SIR GORDON SLYNN — CASE 9/87
agency agreement and the payment of party to the Convention. On the other commission due under such an agreement hand, an interpretation which leaves it to proceedings in matters relating to a contract the conflict of laws rules of Member States within the meaning of Article 5 (1) of the to decide issues like the present does not by Brussels Convention of 27 September 1968?' any means necessarily conflict with the overriding aims of the Convention to facilitate the automatic recognition and enforcement of judgments given in circum- stances which are wholly acceptable as bases Article 5 of the Convention, by way of for jurisdiction. derogation from the basic rule linking juris- diction with domicile set out in Article 2, provides that:
The Court has recognized in Case 12/76 (Tessili v Dunlop [1976] ECR 1473) that, 'Neither of these two options rules out the 'A person domiciled in à contracting State other since the appropriate choice can only may, in another contracting State, be sued: be made in respect of each of the provisions of the Convention to ensure that it is fully effective having regard to the objectives of Article 220 of the Treaty' and taking national law including its conflicts rules may (1) in matters relating to a contract, in the be necessary in view of the 'differences courts for the place of performance of obtaining between national laws of contract the obligation in question; and .. . the absence at this stage of legal development of any unification in the substantive law applicable'.
Whether words or concepts which may have a different meaning in different Member (3) in matters relating to tort, delict or States should be given an independent quasi-delict, in the courts for the place meaning, or decided by reference to the where the harmful event occurred '. substantive law accepted as applicable by the conflict of laws rules of the court seized of the matter, must be decided according to which of them is likely to be most effective in enabling the Convention to achieve the Whether phrases in the Convention are to objectives it pursues. This is so not least be construed as such so that they apply since the derogations in Article 5 are uniformly in all Member States or whether created 'because of the existence, in certain they are to be taken as requiring courts clearly defined situations, of a particularly before which disputes come to apply their close connecting factor between a dispute own conflict of laws rules has already been and the court which may be called upon to much debated. On the one hand, it is said hear it, with a view to the efficacious that to apply an 'independent' interpretation conduct of the proceedings' (Case 33/78 ensures a uniform and equal body of rules Somaferv Saar-Ferngas [1978] ECR 2183, at applicable throughout the Member States p. 2191, paragraph 7).
ARCADO v HAVILAND
If the matter were free from authority, it already held in Case 34/82 (Martin Peters v seems to me that where claims are made in ZNAV [1983] ECR 987) that the phrase respect of alleged contracts there is much to 'matters relating to a contract' in Article 5 be said for adopting a rule that the court in (1) should be regarded as a Community which the proceedings are brought should concept and interpreted in the light of the decide what is the proper law governing the Convention and its aims (at p. 1002, para- circumstances in dispute and then decide graphs 9 and 10). under that law whether the matter relates to a contract and where is the place of performance of the obligation in question. This might well produce different results in different courts as to whether the matter did or did not relate to a contract. On the other hand, it would avoid the conflict which can arise if an independent interpretation decides that the matter is one relating to a The approach of the Court has therefore contract whereas under the proper law been that concepts contained in the governing the circumstances, or the law of Convention relating to the scope of the the place of performance of the obligation, Convention and the scope of the dero- there is no contract at all. gations, under Article 5, from the general rule contained in Article 2(1) should be defined independently in accordance with the objectives and system of the Convention, rather than be defined by reference to individual national laws. By contrast, the place of performance of the obligation to be taken into account is to be determined in accordance with the law which governs the obligation in question The matter, however, is not free from according to the conflict rules of the court authority. The term 'civil and commercial before which the matter is brought (Case matters' in Article 1 of the Convention was 133/81 Ivenelv Schwab [1982] ECR 1891, held to be an independent concept which at p. 1899 (paragraph 7), following Case must be construed with reference first to the 12/76 Tessili v Dunlop [1976] ECR 1473). objectives and scheme of the Convention That approach is also confirmed by Case and secondly to the general principles which 266/85 (Shenavai v Kreischer ECR 239), stem from the corpus of the national legal judgment of 15 January 1987. The identifi- systems (Case 814/79 Netherlands v Ruffer cation of the scope of the derogation and [1980] ECR 3807, at p. 3819, paragraph 7) the determination of the place in which it is following Case 29/76 (Lufitransportunter- to be performed have thus been treated as nehmen (LTU) v Eurocontrol [1976] ECR separate issues; and the Court has adopted 1541, at p. 1551, paragraph 3). Similarly, in different approaches. Case 33/78 Somafer the Court held that the need to ensure legal certainty and equality of rights and obligations for the parties as regards the power to derogate from the general jurisdiction of Article 2 required an independent interpretation, common to all the Member States, of the concepts contained in Article 5 (5) (Somafer, p. 2191, paragraph 8). In particular, the Court has In the light of these decisions it seems to me that the question posed has to be answered
OPINION OF SIR GORDON SLYNN —CASE 9/87
by reference to the Convention rather than It seems to me that if proceedings are by reference to a specific national law. brought which as an essential element of the claim allege the existence of what it is agreed would be a contract if it was made As already indicated the Convention itself (even if the existence of the contract is in must be interpreted with reference first t o dispute (Case 38/81 Effer SpA v Kantner the objectives and scheme of the [1982] ECR 825)) then they are to be Convention and secondly to the general regarded as covering 'matters relating to a principles which stem from the corpus of contract' for the purposes of Article 5 (1) of national legal systems (Case 814/79 The the Convention. Netherlands v Rüffer, supra). In many cases it may be necessary, as it was in Peters, to refer in detail to the legal systems of Member States to see whether the claim That test is clearly satisfied in the present made is to be treated as relating to a case. The claim for commission due under contract. That examination in detail may the commercial agency agreement is now not always be necessary in clear cases. Thus agreed by the parties to be, and plainly is, a in Case 14/76 (De Bloos v Bouyer [1976] matter relating to a contract. So in my view ECR 1497) the Court accepted, without a is the claim for compensation for what is detailed comparison, a claim by the grantee said to be a premature and sudden termi- of an exclusive sales concession against nation of the agreement. The essence of that the grantor, claiming unilateral breach, claim is that the contract itself required dissolution of the contract by the court and reasonable notice of the termination; that payment of damages, as being matters term of the contract was broken; compen- relating to a contract. sation is claimed for the breach.
Accordingly, in m y opinion the question referred falls t o be answered o n the following lines:
' P r o c e e d i n g s relating t o the wrongful r e p u d i a t i o n of an (independent) commercial a g e n c y a g r e e m e n t and the p a y m e n t of commission due u n d e r such an a g r e e m e n t are proceedings in matters relating to a contract within the m e a n i n g of Article 5 (1) of the Brussels C o n v e n t i o n . '
T h e costs of the parties t o the main proceedings are a m a t t e r for the national c o u r t . T h e costs of the Commission and of the M e m b e r States which have submitted observations in these proceedings are n o t recoverable.