C-420/97

LEATHERTEX V BODETEX

OPINION OF ADVOCATE GENERAL LÉGER delivered on 16 March 1999 *

1. The Hof van Cassane (Belgian Court of whereby the court having jurisdiction is Cassation) has referred to the Court a determined according to the place where request for interpretation of Articles 2 and the person being sued is domiciled. Thus it 5(1) of the Brussels Convention, 1 in order provides: 'Subject to the provisions of this to decide which court has territorial jur- Convention, persons domiciled in a Con- isdiction to hear and determine an applica- tracting State shall, whatever their nation- tion comprising several claims for payment ality, be sued in the courts of that State'. of sums of money based on different obligations arising from the same contract.

4. Article 5 of the Convention, however, 2. The court making the reference seeks to provides the plaintiff with a choice of ascertain whether in such circumstances the courts having jurisdiction. In particular, in relevant provisions of the Convention matters relating to a contract, Article 5(1) allow multiple claims to be submitted to states: A person domiciled in a Contract- one court although the claims are based on ing State may, in another Contracting State, contractual obligations of equal rank and, be suedà... in the courts for the place of according to the Court's settled case-law, performance of the obligation in ques- should be enforced in two different Con- tion ...'. tracting States.

I — The Brussels Convention 5. Article 22, which lays down the rules applying in cases where related actions are brought in the courts of different Contract- 3. The first paragraph of Article 2 of the ing States, reads: Convention lays down the principle

while the actions are pending at first commission and compensation for termi- instance, stay its proceedings. nation of the agreement without notice. When it received no response from Lea- thertex, Bodetex sued the latter for pay- ment before the Rechtbank van Koophan- del te K o r t r i j k ( h e r e i n a f t e r ' t h e A court other than the court first seised Rechtbankz'). may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions. 8. By judgment of 1 October 1991, the Rechtbank ruled that the two obligations forming the subject-matter of the applica- tion should be treated separately. It found For the purposes of this Article, actions are that the first obligation, namely to give a deemed to be related where they are so reasonable period of notice in the event of closely connected that it is expedient to terminating a commercial agency agree- hear and determine them together to avoid ment and, if such notice is not given, to pay the risk of irreconcilable judgments result- compensation for termination, should be ing from separate proceedings.' performed in Belgium, whilst the second obligation, namely to pay commission, should be performed in Italy according to the principle whereby a debt must be collected at the place where the debtor is domiciled. I I— Facts and procedure

6. Bodetex BVBA (hereinafter 'Bodetex'), whose registered office is in Belgium, has operated for several years on the Belgian 9. The Rechtbank thus declared it had and Netherlands markets as a commercial jurisdiction under Article 5(1) of the Con- agent for Leathertex Divisione Sintetici vention to hear and determine the claim SpA (hereinafter 'Leathertex'), whose regis- relating to notice of termination, and also tered office is in Italy. Bodetex has acted as that it was competent to deal with the case a commercial agent in return for a commis- as a whole since the two obligations were sion. related. It proceeded to order Leathertex to pay Bodetex the outstanding commission and compensation for termination of the agreement.

Appeal), Ghent. By judgment of 29 Octo- Ill — The question submitted by the ber 1993, that court confirmed that the national court Rechtbank was competent to hear and determine the claims made by Bodetex. 14. The Hof van Cassatie held that the fact that the obligation to pay commission could not be regarded as the principal obligation was not disputed, that the Bel- gian court was competent to rule on the obligation to pay compensation for termi- nation of the agreement, since that con- 11. The Hof van Beroep, Ghent, noted that tractual obligation had to be performed in the application made by Bodetex was based Belgium, and that the two obligations were on two separate obligations arising from equal in rank. the contested agreement. It ruled that since the obligation to pay commission could not be regarded as the principal obligation, the two obligations should be regarded as equal in rank. 15. The question arose whether, in such circumstances, a plaintiff who is a com- mercial agent may derogate from the general rule laid down in Article 2 of the Convention and refer the matter to the court which is competent by reason of the place of performance, within the meaning of Article 5(1), of either of the obligations at issue. 12. In those circumstances, the Hof van Beroep, Ghent held that there was no reason why Bodetex should not bring its action before the court for the place of performance of either of the obligations. It was of the view that the Rechtbank was 16. The Hof van Cassatie stayed proceed- competent to hear and determine this ings and referred the following question to particular case as it was the court for the the Court: place where the obligation to comply with a reasonable period of notice was to be performed. 'Are Articles 5(1) and 2 of the Brussels Convention, in the version applicable to the present case, to be interpreted as meaning that a composite claim founded on different obligations arising from the same contract may be brought before the same court, even though, according to the jurisdictional rules 13. Leathertex applied for review of that of the State in which the proceedings are judgment. brought, one of the contractual obligations

IV — The answer to the question 20. The Court has also ruled that 'multi- plication 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 17. By the question it has raised, the Hof Community' 3 and involves litigants in the van Cassatie is essentially asking the Court 'risk of irreconcilable decisions . . . ' . 4 whether Article 5(1) of the Convention can be interpreted as meaning that the same court can hear and determine an applica- tion comprising several heads of claim based on obligations of equal rank arising from the same commercial agency agree- ment when, according to the respective 21. I should like to make clear, before any places of performance of those obligations, other consideration, that the principle laid within the meaning of Article 5(1) of the down in Article 2 of the Convention Convention, the courts of more than one whereby the competent court is that of Contracting State have jurisdiction. the place were the person being sued is domiciled, which is one of the options open to the plaintiff, would undoubtedly have meant it was possible to avoid the difficul- ties encountered by the Belgian court. As the Court of Justice has ruled, 'the plaintiff 18. The question expresses the concern of is always entitled to bring his action before the referring court to comply with the [that] court ... in accordance with Article 2 provisions of the Convention, thereby avoiding fragmentation of the case, with 2 — Case 14/76 De Bloos [1976] ECR 1497, paragraphs 8 and the possibility of each of its parts being 9. More recently, Case 266/85 Shenavai [1987] ECR 239, dealt with by courts located in different paragraph 8. 3 — Case 34/82 Peters [1983] ECR 987, paragraph 17. Contracting States, contrary to the objec- 4 — Case C-125/92 Mulox IBC [1993] ECR I-4075, paragraph tives of the Convention. 21.

of the Convention, which thereby provides istics appear to lend themselves to so doing a certain and reliable criterion'. 5 naturally leads to combining the claims within the jurisdiction of a single court — that for the place of performance of the principal obligation — without the need to resort to Article 2 (Part A below). 22. The forum of the person being sued may thus hear and determine all the heads of claim and does not need to concern itself with determining the place where they should be performed, as Article 5(1) 26. Secondly, if one assumes that the obli- requires, at the risk of having to decline gations at issue are, or should be, regarded jurisdiction in part where one of the claims as being of equal rank, and that their places has been or is to be performed elsewhere. of performance are located in different Contracting States, it seems appropriate to assess the effect of that situation as regards determining jurisdiction under Article 5(1) of the Convention and in the light of the 23. Is it necessary therefore to settle for objectives of the Convention (Part B Article 2 of the Convention, as the Hof van below). Cassatie appears to be minded to do, 6 where application of Article 5(1) would result in the case being split between several fora ? 27. Lastly, it must not be forgotten that the multiplication of fora having jurisdiction as a result of applying Article 5(1) in the case in the main proceedings follows to a great 24. In the context of the case in the main extent from the interpretation which has proceedings and in view of the arguments traditionally been given of the concept of contained in the order for reference, this 'the place of performance' since the Tessili question could be answered in three differ- judgment. 7It is therefore necessary to look ent ways. at alternative solutions which would result in Article 5(1) being applied in a way which corresponded more closely to the objectives of the Convention, in order to make the choice of jurisdiction provided for 25. Firstly, it is tempting, as the Govern- in the Convention more relevant (Part C ment of the United Kingdom has done, to below). revert to the respective rankings of the obligations concerned. Establishing a hier- archy between the obligations on which the claim is founded where, as in the circum- stances of the present case, their character- 28. Before reverting to each of these points, it should be noted that the version of the 5 — Case 32/88 Humbert [1989] ECR 341, paragraph 21. 6 — In Section 3, paragraph 3 of the French translation of the order for reference. 7 — Case 12/76 [1976] ECR 1473.

33. In the Shenavai judgment, cited above, 8 — See points 3 and 4 of this Opinion. the Court held that regard had to be had 9 — Case 9/87 Arcado [1988] ECR 1539, paragraph 16 of which provides ¡'proceedings relating to the wrongful repudiation 'solely to the contractual obligation whose of an independent commercial agency agreement and the payment of commission due under such an agreement are performance is sought in the judicial pro- proceedings in matters relating to a contract within the ceedings' and stated that 'in the particular meaning of Article 5(1) of the Convention of 27 September 1968'. case of a dispute concerned with a number 10 — Paragraph 19. of obligations arising under the same

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contract and forming the basis of the sation in the event of termination of the proceedings commenced by the plaintiff ... agreement and the subordinate position of it will be the principal obligation which their contracting parties, which was of a will determine its jurisdiction.' 11 legal nature in the case of Mr Ivenel and of an economic nature in the case of Bodetex, are the same in both cases.

11 — Paragraphs 18 and 19. 40. Let me point out first of all that the 12 — Case 133/81 [1982] ECR 1891. question itself clearly describes the obliga-

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tions at issue as being of equal rank. 43. At all events, whether it was a legal Moreover, the referring court expressly obligation incumbent upon the national states that the fact that the two obligations court or that court's own choice, the are of equal rank is one of the given factors answer the Court of Justice gives to the in the case on the basis of which the question raised cannot disregard uncon- question was raised and that the reference tested elements of the order for reference in for a preliminary ruling does not relate to case by so doing it provides the national that point. court with answers which are not directly relevant to the outcome of the case.

44. May I point out in this connection that, 41. Secondly, the Hof van Cassatie cites according to settled case-law, it is solely for several of the grounds of the judgment the national court before which the dispute delivered by the Hof van Beroep, Ghent, on has been brought, and which must take 29 October 1993, which show that the Hof responsibility for the subsequent judicial van Beroep clearly held that the 'two decision, to determine in the light of the obligations ranked equally in importance particular circumstances of each case both ...'. 13 The Hof van Cassatie, refers to the the need for a preliminary ruling in order to Sbenavai judgment, cited above, and states enable it to deliver judgment and the that the equal importance of the obligations relevance of the questions it submits to has not been challenged.14 the Court. 15

47. The national court is referring implicity to the Court's case-law resulting from the Tessili judgment, cited above, application 49. The arguments put forward by the of which in the present case would lead to intervening parties provide an accurate more than one place of performance and summary of the substance of the problem, therefore to more than one court having at least as it appears in the context of the jurisdiction. 16 Tessili judgment, cited above.

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52. The final possibility is that, the court 55. The Court of Justice clearly stated this having jurisdiction to hear and determine in its judgment in Elefanten Schuh: 'Arti- one of the claims based on obligations cle 22 of the Convention is intended to which are of equal rank, under Article 5(1) establish how related actions which have of the Convention, also has jurisdiction to been brought before courts of different hear and determine the other claim if there Member States are to be dealt with. It does is a relationship between those two claims not confer jurisdiction'. 19 which is so close that it is in the interest of good justice to examine and rule on them together in order to avoid irreconcilable outcomes. This is the solution advocated by the Commission. 56. The Commission, however, accepts this view since it states that 'so long as only one court is seised there is no question of applying Article 22'. 20

53. As regards the Commission's argument that jurisdictions should be combined since the claims are related, I consider this goes further than the wording of the Convention 57. It even adds that it is merely a matter of allows. 18 interpreting Article 5(1) in a way which will preclude situations likely to come within the scope of Article 22. 2 1

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interpretation of Article 5(1) which is so far 63. As can be seen from the case-law of the removed from the text. Court, as I have already mentioned, this requirement for legal protection is reflected in the need to avoid wherever possible a situation in which a number of courts have jurisdiction in respect of one and the same 59. Direct combination of related actions contract. 23 before the same court, where the places of performance of the obligations on which they are based are situated in different Contracting States amounts to disregarding the criterion of the place of performance of one of those obligations, which is contrary 64. In order to ensure that the Convention to the provisions of Article 5(1). is fully effective, it is essential to unify the jurisdiction rules of the courts of the Contracting States, so as to avoid as far as possible multiplication of the bases of jurisdiction, and allow the plaintiff to 60. In fact, the Commission's proposal identify easily the court before which he amounts to altering the way the Conven- may bring an action and the defendant tion deals with the question of related reasonably to foresee the court before claims, going against the letter of its which he may be sued. 24 It is thus a case provisions and failing to take into account of protecting legal certainty for persons the intentions of the Contracting States, an within the territory of the Community by outcome which was never actually envi- ensuring the predictability of the rules on saged, and this cannot be permitted. jurisdiction that will apply.

71. The Court has held on several occa- sions that the categories of 'special jurisdic- tion' enumerated in Article 5 of the Con- 67. The judgments delivered by the Court vention constitute derogations from the in cases involving multiple obligations principle that jurisdiction is vested in the confirm this course. courts of the State where the defendant is domiciled, as laid down in the 'General provisions' of Articles 2 and 3, and as such must be interpreted restrictively.29

68. When it comes to identifying, among several obligations, the contractual obliga- tion forming the basis of the legal proceed- ings, 2 6 the principal obligation, 27 or the 72. One might gain from that case-law the obligation which characterises the con- idea that where recourse to a special tract, 28 the Court has advocated establish- jurisdiction produces results which clearly ing, wherever possible, a hierarchy within conflict with the objectives of the Conven- the obligations at issue in order to avoid tion it is necessary to reject the choice of related proceedings being split between jurisdiction and say, as in the Humbert different courts. judgment, cited above, that Article 5(1) of the Convention does not apply. 30

69. In this particular case we are presented 73. This solution seems to me to be of with a situation which does not allow a doubtful legal validity. hierarchy to be established within the obligations, since they are described as being of equal rank.

74. The Convention does not make the choice of jurisdiction subject to compliance with any prior condition. A plaintiff is 70. The question is therefore whether, in always at liberty to choose any of its terms view of this fact, the text of the Convention where a case comes within the scope of the

75. Moreover, the fact that in the Humbert judgment cited above the choice of juris- diction was rejected in favour of the rule of jurisdiction contained in Article 2 of the Convention was due to the specific nature 78. The choice which is made may conflict of the main proceedings in that case, which with the objectives of the Convention: it is related to obligations performed outside up to the plaintiff to assess to what extent the territorial scope of the Convention. the increased number of courts having Application of Article 5(1) would have jurisdiction as a result of applying Arti- resulted in jurisdiction being located out- cle 5(1) is the source of more inconvenience side the territory of the Contracting States, than would result from combining the a situation which is contrary to both the heads of claim comprising his action before letter and the spirit of Article 5, which a single court situated in the place where provides that a person domiciled in a the defendant is domiciled, if, under Arti- Contracting State may be sued elsewhere cle 5(1), one of the courts is situated in the than in that State only in another Con- Contracting State of his domicile. tracting State, and excludes third States.

76. The Court of Justice has, moreover, 79. I share the idea that Article 5(1) of the observed that, whilst it is true that dis- Convention cannot be prevented from advantages arise from different aspects of applying on grounds other than those the same dispute being adjudicated upon by dictated by its own scope of application, different courts, the plaintiff is always even where the use which the plaintiff seeks entitled to bring his action in its entirety to make of it leads to determining jurisdic- before the courts for the domicile of the tion in a way which is not in accordance defendant, which thus provides a sure and with the principles of the Convention, if reliable criterion. 32 that is the choice of the plaintiff.

81. It follows, therefore, that claims relat- ing to two obligations of equal rank arising from one and the same contract, whose respective places of performance according to the jurisdiction rules of the State of the court seised of the matter are in two C — The effects of the content of the different Contracting States, may, under concept of 'places of performance' Article 2 of the Convention, be submitted to the same court, namely that of the Contracting State of the person being sued. 85. In referring to the conflict rules of the forum in order to determine the place of performance of the obligations at issue, the national court was naturally complying with the relevant Community case-law. 82. However, in that same situation, Arti- cle 5(1) of the Convention precludes one and the same court having jurisdiction to entertain both those claims where their places of performance are located in the territory of two different Contracting States. (1) The Tessili judgment

88. In the Tessili judgment, cited above, the Court answered: 'Neither of these two options rules out the other since the appropriate choice can only be made in respect of each of the provisions of the 91. The reference by the Court to the Convention to ensure that it is fully effec- substantive law applicable was based on tive having regard to the objectives of the differences obtaining between national Article 220 of the Treaty'. 35 laws of contract and in view of the absence, at the stage of legal development in 1976, of any unification of the substantive law applicable. 38 It was stated that that posi- tion was justified also by the fact that determination of the place of performance of the obligations depends on the contrac- tual context to which those obligations belong. 39 89. The Court has on several occasions ruled in favour of an autonomous inter- pretation of some of the concepts of the Convention, stating that, 'according to settled case-law... the Court will, in prin- ciple, interpret the terms of the Convention autonomously so as to ensure that it is fully effective having regard to the objectives of 92. The position set out in the Tessili Article 220 of the EEC Treaty, for the judgment cited above reflects a legitimate i m p l e m e n t a t i o n of which it was concern not to impose on all the Contract- adopted'. 36 ing States a definition which conflicted with their national laws and whose appro- priateness as regard the objectives of the 34 — The Tessili and De Bloos judgments, both delivered on Convention was not clearly apparent. 6 October 1976, are the first of the Court's judgments interpreting the Convention. 35 — Paragraph 11. 36 — Farrell judgment, cited above, paragraph 12. A definition 37 — The solution given in the Tessili judgment, paragraph 13, of the term 'civil and commercial matters' had been given referred to in the Sbenavai judgment, paragraph 7, was by the Court back in 1976 in the judgment in Case 29/76 referred to again in the judgment in Case C-288/92 LTU [1976] ECR 1541. Other definitions followed: the Custom Made Commercial [1994] ECR I-2613, paragraph term 'matters relating to a contract' in the Peters judgment, 26 et seq. 'matters relating to tort, delict or quasi-delict', in the Kalfelis judgment, or the term 'maintenance creditor' in 38 — Tessili judgment, paragraph 14. the Farrell judgment, to cite but a few. 39 — Ibid.

93. Thus, the obligation to make payment, the place where the creditor is domiciled 42 which obviously relates to a very large amounts in fact to adopting a forum actoris number of contracts and is directly at issue which was clearly not that intended by the in the case in the main proceedings, 40 Convention. This can be seen from the fact clearly shows the unsatisfactory nature of that Article 2 provides that the jurisdiction an autonomous definition in this area, of the courts of the defendant's domicile is which derives its content from the way in the fundamental jurisdiction.

94. Depending on whether payment is to be cases expressly provided for, the Conven- collected at the place of the debtor's tion appears clearly hostile towards the domicile or the creditor's domicile, the attribution of jurisdiction to the courts of place of performance of the obligation to the plaintiff's domicile'. 44 make payment will be the place where either the defendant or the plaintiff is domiciled. In addition to the difficulties relating to the choice between the national laws of the Contracting States, which are divided equally between the legal sys- tems, 4 1 there is no rational criterion 96. On the other hand, to identify the place enabling arbitration in accordance with of performance of an obligation to make the principles of the Convention. payment as the place where the defendant is domiciled — which is the solution adopted by those Contracting States for whom a debt is payable at the debtor's place of domicile — would remove the choice of jurisdiction provided for in the Convention, since this interpretation of

I-139, paragraph 17.

102. Besides the interest in having certainty regarding the rules of jurisdiction, it is also necessary to point out the importance of 99. The Court of Justice upheld its case- the connecting factor which must exist, so law, transposing it to the circumstances far as possible, between the dispute and the where a renvoi is made under conflict rules court having jurisdiction to resolve it. The to a uniform law. 45 It therefore declined to special rules of jurisdiction, which apply to the forum contractus provided for in Arti- cle 5(1) of the Convention, are justified by 45 — Paragraph 28. the consideration that there is a close

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connecting factor between the dispute and 105. The Court's case-law moreover con- the court having jurisdiction to resolve it, in sistently refers to the fundamental nature of order to ensure the proper organisation of this principle, which justifies Article 5, and the case. 46 the freedom of choice which its existence gives alongside Article 2. 47

106. It is difficult in this particular case to find such a connection between the claim for payment of commission sought and the 103. This principle stems from the idea that corresponding forum according to the sub- it will be easier for a court which is stantive law applicable, which is that of geographically proximate to the contrac- Italy, when one realises that the commis- tual relationship at issue, through the sion is the consideration for the perfor- knowledge it has of the facts of the case, mance of the agreement by Bodetex, which to rule on the matter before it. is established in Belgium and responsible, under the terms of the agreement, for the Belgian and Netherlands markets.

109. It seems to me that a solution which is closer to the requirements of the Conven- 112. Advocate General Lenz adds that 'the tion could be applied in this case. place of performance under substantive law generally determines merely the allocation of the risks and burdens connected with the transfer of money, the availability of which does not depend on the place of perfor- mance of the obligation in question'. 50 He considers that it is necessary to 'diverg[e] (3) To achieve a solution which is closer to from the substantive law of the contract the objectives of the Convention [if]... those rules [cannot] serve to deter- mine a court which [is] physically prox- imate to the relationship ...'. 51

(a) Place of performance: a term with a variety of meanings

118. There is no doubt that such an 115. May I say, lastly, that Mr Lenz's interpretation is difficult for a number of statement that 'in neither of [the] judg- reasons. ments [in De Bloos ν Bouyer and Tessili ν Dunlop] did the Court take physical proxi­ mity as a reason for examining whether it was necessary to deviate from the substan­ tive law (of the contract) in interpreting Article 5(1)...' 52 could also be made with regard to the judgment in Custom Made 119. Firstly, one wonders whether the very Commercial, cited above. principle of an autonomous definition in the matter of contracts is not questionable from the point of view of legal certainty, since the Court has to define as many concepts of 'place of performance' as there are contracts, which includes contracts sui generis and this means that it is faced with a never-ending task. 116. This continuing tolerance of a version of a provision which is so far removed from what constitutes its main justification can­ not be explained solely by the existence of a choice of jurisdiction, which enables a plaintiff facing procedural complications 120. Secondly, assuming this tricky under­ due, for example, to the multiplicity of fora taking is embarked upon, the Court is or the existence of a negative conflict of required to give substance to the concept of jurisdiction, to base his claims on Article 2 'place of performance'. The existence of of the Convention. uniform laws, which are thought to remove the obstacle, referred to in the Tessili judgment cited above, of the absence of 52 — Point 49. unification of the substantive law applic-

53 — Point 97 et seq. of this Opinion. 128. In those circumstances, an autono- 54 — Point 98 of this Opinion. mous interpretation has some legitimacy,

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that conferred on it by the objective of 133. I would add that the lack of legal harmonisation and simplification of the certainty generated by the uncertainty Convention. affecting determination of the place of performance of the obligations seems to me to be greater in the case of application of the lex causae than of devising autono- mous Community law.

129. However, the risk that this analytical process will affect legal certainty for liti- gants should not be exaggerated. 134. The choice of an autonomous criter- ion is, in fact, likely to make it easier to devise pragmatic definitions applicable in a uniform and lasting manner to an increas- ing number of categories of obligation, 130. An autonomous definition of the according to one scheme, which meets the place of performance of an obligation will requirements of the Convention. often be transposable to other obligations, of which there may be many. 55

141. The De Bloos judgment cited above takes account of the fact that the claim is (a) Obligations to make payment not seeking direct performance of a default- ing contractual obligation, but rather com- pensation for non-performance or draws the legal consequences therefrom, in order not to dissociate artificially the place of 138. It is appropriate to apply the Court's performance of the original contractual case-law in De Bloos, cited above. obligation from that of the 'obligation replacing the unperformed contractual obligation', 58 which might also be termed a counter obligation.

139. The general principle in De Bloos would lead one to take into account the obligation corresponding to the contractual right on which the plaintiff's action is based. 56 This therefore involves both the 142. Thus, in such a circumstance, the obligation to pay the commission sought in place of performance serving to determine return for operating as an agent, as pro- jurisdiction is not, as the first principle set vided in the agreement, and the obligation out in the abovementioned judgment would to pay compensation for termination of the have it, that of the obligation under the agreement in return for the obligation to contractual law on which the plaintiff's comply with a term of notice at the end of action is based, but that of the unperformed the commercial agency agreement. obligation on which the claim for payment is based.

140. It should be remembered, however, that according to that judgment 'in a case where the plaintiff asserts the right to be 143. In this way, the multiplicity of heads paid damages or seeks a dissolution of the of claim, which is sometimes the conse- contract on the ground of the wrongful quence of one and the same failure to conduct of the other party, the obligation perform a contractual obligation, does not referred to in Article 5(1) is still that which result in a proliferation of jurisdictions. arises under the contract and the non-

145. On the other hand, if one follows the sense of the De Bloos judgment, cited above, that reasoning cannot be transposed 149. There is no reason to draw a distinc- to a claim for payment of commission. The tion between these obligations since they payment of commission does not in fact come under the same category of obliga- constitute an obligation replacing an unper- tions to make payment. formed contractual obligation, within the meaning of the judgment cited above, but, as the file shows, one of the main contrac- tual obligations incumbent on the princi- pal. 150. As Mr Lenz pointed out in his Opi- nion in the Custom Made Commercial case, cited above, regarding the payment of the purchase price — 'in the case of 146. In these circumstances, the place of disputes about the payment of the price performance to be taken into account arising on account of the alleged defective should be that of the actual obligation to performance of the counter-obligation ... make the payment. the court for the place at which the goods were intended to be supplied is, as a general rule, nearer to the facts than the courts for the place from which they were sent ...'. 6 1 147. I have already mentioned the difficul- ties involved in determining the place of performance of obligations to pay sums of money. 60

contract at which the goods are intended to itself as the criterion for the choice of the be supplied ...'. 62 competent forum' and 'It is not possible for an applicant to sue a defendant before any court having a connection with the dispute since Article 5 lists exhaustively the criteria for linking a dispute to a specific court'. 63 152. The objective legal basis of a dispute, whether it be a claim for payment of a price or a claim for compensation, is often to be found at the place of performance of the obligation in kind, so that the correspond- 156. It seems to me, as it did to the Court, ing forum is likely to be chosen according to be essential not to allow the use of to the criterion of the close connecting criteria other than the place of performance factor between the dispute and the court where that place assigns jurisdiction to a having jurisdiction. forum which has no direct connection with the case.

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best placed to hear and determine the promote the search for a forum close to the dispute in order to agree on jurisdiction, it dispute, without thereby threatening liti- was decided to select the place of perfor- gants' legal certainty by resorting directly mance as the criterion which was best to that criterion. suited to achieve this purpose. Its fixed nature, irrespective of whether a connect- ing factor with the dispute of the court it designates can be proved, guarantees a clear and precise determination of the rules of jurisdiction applicable. (b) Obligations in kind

159. This is the interpretation which the 162. It is appropriate to examine the fac- Court has given in this connection, ruling tors which make it possible to establish the that 'under Article 5(1), in matters relating place of performance, for the purposes of to a contract, a defendant may be sued in Article 5(1) of the Convention, of the the courts for the place of performance of obligations in respect of which commercial the obligation in question, even where the agency commission and compensation for court thus designated is not that which has termination of the agreement are the coun- the closest connection with the dispute'. 64 ter obligations.

knowledge of the facts, on the dispute tures compared with other contracts in that before it. they create a lasting bond which brings the worker to some extent within the organisa- tional framework of the employer's busi- ness and they are linked to the place where the activities are pursued, which determines the application of mandatory rules and 165. It should be pointed out that this collective agreements protecting the approach is not totally new since, in view employee. 67 of their specific nature, contracts of employment do not come within the scope of the Court's Tessili judgment cited above, since their place of performance is defined autonomously. The Court deduces from this that it is appropriate to determine the place of performance of the relevant obligation, for the purposes of applying Article 5(1) 166. After observing that 'the obligation to of the Convention, by reference not to the be taken into consideration for the pur- applicable national law in accordance with poses of the application of Article 5(1) of the conflict rules of the court seised but, the Convention to contracts of employment rather, to uniform criteria which it is for the is always the obligation which characterises Court to lay down on the basis of the such contracts, namely the employee's scheme and objectives of the Convention. 68 obligation to carry out the work stipu- lated',65 the Court held that, in this area 'the place of performance of the relevant obligation must be interpreted as meaning, for the purposes of Article 5(1) of the Convention, the place where the employee 169. On the other hand, the interpretation actually performs the work covered by the is based on the concern to afford proper contract with his employer'. 66 protection to the party to the contract who is the weaker from the social point of view, in this case the employee.69 The Court considers that protection of that kind is best assured if disputes relating to a con- 167. The interpretation is justified by two tract of employment fall within the juris- different considerations. diction of the courts of the place where the employee discharges his obligation towards his employer. That is the place where it is least expensive for the employee to com- mence, or defend himself against, court proceedings. 70 168. On the one hand, contracts of employment display certain particular fea- 67 — Ibid., paragraph 15. 68 — Ibid., paragraph 16. 65 — Mulox IBC judgment, cited above, paragraph 14. 69 — Ibid., paragraph 18. 66 — Ibid., paragraph 20, emphasis added. 70 — Ibid., paragraph 19.

72 — Which, according to Articles 5 and 6 of the Hague Convention of 14 March 1978 publishing the Convention 173. On the contrary, this choice is dictated on the law applicable to agency (Decree No 92-423 of by the particular ability of the actual place 4 May 1992, Journal officiel de la République française of 8 May 1992, p. 6307) is either the internal law chosen by of performance, in an agency agreement, to the parties or that of the State where, at the time of formation of the agency relationship, the agent has his business establishment or, if he has none, nis habitual residence, or lastly that of the State where the agent is primarily to act if the principal has his business establish- 71 — Article 1(2) of Directive 86/653. ment, or if he has none, his habitual residence in that State.

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LEATHERTEX V BODETEX

182. Where, as in the present case, the 179. In the case which concerns us, where place of performance of the obligations at the obligations at issue in the proceedings issue is the same as that of the agreement are of equal rank, the existence of a single forum having jurisdiction depends on the existence of a single place of performance 73 — Article 15 of Directive 86/653.

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OPINION OF MR LÉGER — CASE C-420/97

itself, and the scope of the agreement 183. From a more general viewpoint, this covers the territories of several Contracting policy does not exempt the referring court States, it is for the court making the from first checking whether a hierarchy can reference to determine that place of perfor- be established between the contested obli- mance on the basis of the factors which gations arising from an agreement, in order, enable it to designate one of the States as as the Court has consistently held, to the State in whose territory the commercial determine the principal obligation so as to agent will engage in most of his activity. designate the court which has jurisdiction.

Conclusion

184. I therefore propose that the Court give the following answer to the question submitted by the Hof van Cassatie: