C-106/95

Les Gravières Rhénanes SARL

on the interpretation of Article 5(1) and the third hypothesis mentioned in the sec- ond sentence of the first paragraph of Article 17 of the Convention of 27 Septem- ber 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1; amended version of the Convention at p. 77),

* Language of the case: German.

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MSG v GRAVIERES RHÉNANES

T H E C O U R T (Sixth Chamber),

— the Commission of the European Communities, by Pieter van Nuffel, of its Legal Service, acting as Agent, assisted by Hans-Jürgen Rabe, Rechts an walt, Hamburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Mainschiffahrts-Genossenschaft eG (MSG), represented by Thor von Waldstein; Les Gravières Rhénanes SARL, represented

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JUDGMENT OF 20. 2. 1997 — CASE C-106/95

by Fink von Waldstein; the Greek Government, represented by Vasileios Konto- laimos, Assistant Legal Adviser in the State Legal Department, acting as Agent, and the Commission, represented by Hans-Jürgen Rabe, at the hearing on 4 July 1996,

MSG v GRAVIERES RHÉNANES

3 According to the case-file, that vessel operated a shuttle service on the Rhine between 1 June 1989 and 10 February 1991, chiefly carrying shipments of gravel. With some exceptions, the places of loading were all located in France, whilst the cargo was invariably unloaded in France. According to MSG, the handling equip- ment used by Gravières Rhénanes to unload the cargo damaged its vessel. The main proceedings are for the sum of D M 197 284, namely the difference between the amount paid by Gravières Rhénanes' insurers and the amount claimed by MSG.

4 MSG brought an action before the Schiffahrtsgericht (Maritime Court) Würzburg, taking the view that the third hypothesis mentioned in the second sentence of the first paragraph of Article 17 of the Convention entitled it to do so on the ground that the parties had validly designated Würzburg, MSG's principal place of busi- ness, as the place of performance and the Würzburg courts as having jurisdiction.

5 The first and second sentences of the first paragraph of Article 17 of the Conven- tion provide as follows:

'If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a par- ticular legal relationship, that court or those courts shall have exclusive jurisdic- tion. Such an agreement conferring jurisdiction shall be either in writing or evi- denced in writing or, in international trade or commerce, in a form which accords with practices in that trade or commerce of which the parties are or ought to have been aware.'

8 The Bundesgerichtshof found, in the first place, that the jurisdiction of the French courts was borne out by the general rule set forth in the first paragraph of Article 2 of the Convention (place of the defendant's domicile), by Article 5(3) (place where the harmful event occurred) and likewise by Article 5(1) (place of perfor- mance of the obligation in question). The contractual obligations arising under the contract of carriage had to be performed in France and MSG was under an obliga- tion to present the vessel at Gravières Rhénanes' principal place of business, which was in France. In the Bundesgerichtshofs view, this case affords two possible approaches by which the jurisdiction of the French courts might be ousted in favour of the international jurisdiction of the German courts.

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MSG v GRAVIERES RHÉNANES

9 In the first place, Würzburg might be regarded as the place of performance within the meaning of Article 5(1) of the Convention, on the ground that it was identified as such by the parties' oral agreement. The Bundesgerichtshof observes that in this case the agreement was 'abstract'. It characterizes an agreement on the place of performance as abstract where it does not set out to designate the place where the person liable has to perform his obligations, but only to determine the courts hav- ing jurisdiction, without complying with the requirements as to form set out in Article 17 of the Convention. The only aim of such an agreement, therefore, is to disguise an agreement conferring jurisdiction. In this case, the contractual obliga- tions had to be performed in any event in France, where in all cases the place of unloading was located.

2) In the event that the Court of Justice should answer Question 1 in the nega- tive:

(a) Can an agreement conferring jurisdiction in international trade or com- merce in accordance with the third hypothesis mentioned in the second sentence of the first paragraph of Article 17 of the 1978 version of the Brussels Convention also be concluded by one party's not contradicting a commercial letter of confirmation containing a pre-printed reference to the courts of the consignors' place of business having sole jurisdiction or must there have been in every case prior consensus with regard to the content of the letter of confirmation?

(b) Is it sufficient in order for there to be an agreement conferring jurisdiction within the meaning of the aforesaid provision if the invoices sent by one party all contain a reference to the courts of the carrier's place of business having sole jurisdiction and to the conditions of the bill of lading used by the carrier which also stipulate the courts of the same place as having juris- diction, and the other party invariably paid the invoices without objecting, or is prior consensus also required in this respect?'

The second question

1 3 By its second question, which, being concerned with exclusive jurisdiction, may conveniently be considered first, the national court essentially asks whether, under a contract concluded orally, an agreement conferring jurisdiction may be deemed to have been concluded in international trade or commerce in the form required by the third hypothesis mentioned in the second sentence of the first paragraph of Article 17 of the Convention simply by virtue of the fact that one party to the contract did not react to a commercial letter of confirmation sent to him by the

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17 Yet that relaxation incorporated in Article 17 by the 1978 Accession Convention does not mean that there is not necessarily any need for consensus between the parties on a jurisdiction clause, since it is still one of the aims of that provision to ensure that there is real consent on the part of the persons concerned. The weaker party to the contract should be protected by avoiding jurisdiction clauses incorpo- rated in a contract by one party alone going unnoticed.

18 To take the view, however, that the relaxation thus introduced relates solely to the requirements as to form laid down by Article 17 by merely eliminating the need for a written form of consent would be tantamount to disregarding the require- ments of non-formalism, simplicity and speed in international trade or commerce and to depriving that provision of a major part of its effectiveness.

19 Thus, in the light of the amendment made to Article 17 by the 1978 Accession Convention, consensus on the part of the contracting parties as to a jurisdiction clause is presumed to exist where commercial practices in the relevant branch of international trade or commerce exist in this regard of which the parties are or ought to have been aware.

20 It must therefore be considered that the fact that one of the parties to the contract did not react or remained silent in the face of a commercial letter of confirmation from the other party containing a pre-printed reference to the courts having juris- diction and that one of the parties repeatedly paid without objection invoices issued by the other party containing a similar reference may be deemed to consti- tute consent to the jurisdiction clause in issue, provided that such conduct is con- sistent with a practice in force in the area of international trade or commerce in which the parties in question are operating and the parties are or ought to have been aware of that practice.

25 The answer to the second question must therefore be that the third hypothesis in the second sentence of the first paragraph of Article 17 of the Convention, as amended by the Accession Convention of 9 October 1978, must be interpreted as meaning that, under a contract concluded orally in international trade or com- merce, an agreement conferring jurisdiction will be deemed to have been validly concluded under that provision by virtue of the fact that one party to the contract

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27 By this question, the national court essentially asks whether an oral agreement on the place of performance, which is designed not to determine the place where the person liable is actually to perform the obligations incumbent upon him, but solely to establish that the courts for a particular place have jurisdiction, is valid under Article 5(1) of the Convention.

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MSG v GRAVIERES RHÉNANES

28 Article 5(1) of the Convention provides as follows:

'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 the performance of the obligation in question.'

32 This approach is based, in the first place, on the terms of Article 5(1) of the Con- vention, which confers jurisdiction on the courts for the place 'of performance' of the contractual obligation on which the claim is based. Consequently, that provi- sion has in mind the place of actual performance of the obligation as the jurisdic- tional criterion by reason of its direct connection with the courts on which it con- fers jurisdiction.

33 Secondly, it should be considered that to specify a place of performance which has no actual connection with the real subject-matter of the contract becomes fictitious and has as its sole purpose the determination of the place of the courts having jurisdiction. Such agreements conferring jurisdiction are governed by Article 17 of the Convention and are therefore subject to specific requirements as to form.

34 Thus, where there is such an agreement, there is not only no direct connection between the dispute and the courts called upon to determine it, but there is also circumvention of Article 17, which, whilst providing for exclusive jurisdiction by dispensing with any objective connection between the relationship in dispute and the court designated (Zeiger v Salinàri, paragraph 4), requires, for that very reason, compliance with the strict requirements as to form which it sets out.

35 The answer to the national court's first question must therefore be that the Con- vention must be interpreted as meaning that an oral agreement on the place of per- formance which is designed not to determine the place where the person liable is actually to perform the obligations incumbent upon him, but solely to establish that the courts for a particular place have jurisdiction, is not governed by Article 5(1) of the Convention, but by Article 17, and is valid only if the requirements set out therein are complied with.

in answer to the questions referred to it by the Bundesgerichtshof by order of 6 March 1995, hereby rules:

1) The third hypothesis in the second sentence of the first paragraph of Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Den- mark, Ireland and the United Kingdom of Great Britain and Northern Ire- land, must be interpreted as meaning that, under a contract concluded orally in international trade or commerce, an agreement conferring jurisdic- tion will be deemed to have been validly concluded under that provision by virtue of the fact that one party to the contract did not react to a commer- cial letter of confirmation sent to it by the other party to the contract or repeatedly paid invoices without objection where those documents con- tained a pre-printed reference to the courts having jurisdiction, provided that such conduct is consistent with a practice in force in the field of inter- national trade or commerce in which the parties in question operate and the latter are aware or ought to have been aware of the practice in question. It is for the national court to determine whether such a practice exists and whether the parties to the contract were aware of it. A practice exists in a branch of international trade or commerce in particular where a particular

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course of conduct is generally followed by contracting parties operating in that branch when they conclude contracts of a particular type. The fact that the contracting parties were aware of that practice is made out in particular where they had previously had trade or commercial relations between them- selves or with other parties operating in the branch of trade or commerce in question or where, in that branch, a particular course of conduct is gener- ally and regularly followed when concluding a certain type of contract, with the result that it may be regarded as being a consolidated practice.

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