C-440/97

GIE GROUPE CONCORDE AND OTHERS V MASTER OF THE VESSEL

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 16 March 1999 *

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more than in domestic jurisdiction — there for compensation before the Tribunal de are any particular reasons for this theore- Commerce de Terre et de Mer, Le Havre, tical approach: priority should not be given against the master and the owner of the to finding the interpretative solution which vessel, the carrier Pro Line and the Swedish is the most perfect in theory, but to company which insured the vessel for civil providing courts and litigants with working liability. criteria.

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Brussels Convention, as interpreted by the III— The applicable provisions of the Court of Justice since the Tessili judgment Brussels Convention of 6 October 1976, cited above.

10. The first paragraph of Article 2 of the Brussels Convention lays down the follow- 9. The Commercial, Financial and Eco- ing general rule of jurisdiction: nomic Chamber of the Cour de Cassation (France) confirmed that the French courts had no jurisdiction to entertain the action in so far as it had been brought against the master of the vessel. However, the Cour de Cassation considered that jurisdiction to 'Subject to the provisions of this Conven- entertain the action in so far as it had been tion, persons domiciled in a Contracting brought against the carrier raised a serious State shall, whatever their nationality, be difficulty of interpretation of the Brussels sued in the courts of that State.' Convention. Consequently, pursuant to Article 1 of the Protocol of 3 June 1971 on the Interpretation by the Court of Justice of the European Communities of the Brussels Convention, judgment was stayed and the following question was 11. The special jurisdictions include that of referred to the Court of Justice : Article 5, point (1), the relevant part of which is worded as follows:

which the plaintiff may, provided the to be taken into account was that on which conditions prescribed in the provision are the action was based. 6 fulfilled, choose between two forums: that of the defendant's domicile or that of the place of performance of the contractual obligation, which thereby becomes a con- current or optional jurisdiction. 14. The Court allowed only one exception to the general rule laid down in the Tessili judgment. I refer to the obligations arising from a contract of employment. In Ivenel 7 the Court held that, among all the obliga- tions arising under a contract of employ- ment, the only obligation to be taken into account for the purposes of the application IV — Brief summary of the case-law of Article 5, point (1), of the Convention, was the obligation which 'characterised' the contract. This obligation was to be deemed to have been performed in practice at the place where the worker supplied his 12. Just as a reminder, I shall review briefly services. 8 The Court refused to extend this the Court's case-law on Article 5, point (1), interpretation to other situations. 9 of the Convention in so far as it is relevant to the present case.

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Uniform Law on the International Sale of this has on ability to foresee the competent Goods. court in matters relating to a contract, desirable as that is.

V — The observations submitted to the Court (b) The observations of the intervening governments

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where the service in question is to be the place at which it was agreed that those mainly carried out, where it forms the basis goods were to be delivered. of the action.

20. The French Government accepts, On the other hand, where the action relates firstly, that it has been found that certain to the pecuniary consideration, the place of national courts have had difficulty in performance could be deemed to be the applying the principles of the Tessili judg- defendant's forum at the time when the ment and that they have given rise to a contract was concluded. certain lack of foreseeability with regard to the competent court in matters relating to a contract. However, as relationships creat- ing obligations are not always governed by uniform legal rules, to permit the national court to designate the place of performance according to the de facto circumstances of 19. The United Kingdom Government also each of those relationships would give rise advocates an independent definition of to unforeseeability and, therefore, legal 'place of performance'. According to this uncertainty. Consequently, the French Gov- Government, an independent definition ernment considers that it is not desirable to would not only promote legal certainty accept the solution indirectly proposed by and ensure the equality and uniformity of the Cour de Cassation, which would con- the rights and obligations arising under the sist in giving 'place of performance' an Convention, but would also reduce, in independent definition. accordance with the aims of the Conven- tion, the potential for forum shopping. 10

VI — Discussion of the solution adopted in 22. According to the Commission, the Tessili Court's approach in Tessili was from the beginning an interim solution in so far as, at that time, it was not possible to arrive at a Community interpretation which would ensure the uniform application of Article 5, point (1), of the Brussels Convention. The 23. The question on which the Cour de Commission adds that this approach gives Cassation seeks a preliminary ruling does rise to certain practical and theoretical not appear in principle to require the difficulties. The court before which the attention of the full Court of Justice. The matter is brought must first establish, by question relates to the interpretation of reference to its own rules of conflict, the Article 5, point (1), of the Brussels Con- law applying to the obligation in question vention, namely the meaning of 'place of and must then determine the competent performance of the obligation in question' forum according to that law. However, this for the purposes of this European code of method departs from the general rule in procedure. However, the Court has been private international law that the determi- giving rulings on this question since 1976, nation of the competent court is indepen- when it gave what was to become the first dent of the determination of the applicable judgment delivered on the subject of the law. Brussels Convention. To ascertain whether it has jurisdiction, the court before which the matter is brought 'must determine in accordance with its own rules of conflict of laws what is the law applicable to the legal The Commission therefore proposes that relationship in question and define in the Court should interpret the term 'place accordance with that law the place of of performance' independently. This is performance of the contractual obligation appropriate particularly in the case of in question'. 1 1This case-law was followed contracts for carriage by sea, the specific recently, in the same terms, in Custom characteristics of which make it difficult to Made 12 on a reference for a preliminary apply the principles of the Tessili judgment effectively. After examining the existing 11 — See the Tessili judgment, cited in footnote 3, paragraph 13. possibilities of interpretation for determin- 12 — See the Custom Made judgment, cited in footnote 4, ing the place for performance of the paragraph 26.

ruling from the Bundesgerichtshof. The 25. The Brussels Convention lays down a Court has been giving virtually the same general rule (actor sequitur forum ret), answer for more than 20 years. 13 known in almost all legal systems, that the courts of the defendant's domicile have jurisdiction. 15 However, in addition to this true general forum, the Convention creates other bases of jurisdiction, some of which are special or optional while others are exclusive. The former include that which interests us here: the plaintiff may sue the defendant in the courts for 'the place of performance of the obligation in question'. 24. It is true that, in relation to Tessili, the Later on I shall set out the reason for this Custom Made case had a new element in so special forum. For the present it is sufficient far as the law applicable to the legal to say that a plaintiff who wishes to assert relationship arose, not from the rules of in court a right arising from a contractual conflict, but from a uniform law originat- obligation has the option of bringing an ing from a convention relating to interna- action, at his convenience, before at least tional transactions, namely the Uniform two courts: that of the defendant's domicile Law on the International Sale of Goods, and that for the place of performance of the annexed to the Hague Convention of 1 July obligation. 1964. However, this reference is not valid in the present case. The Cour de Cassation does not indicate any particular feature of the present case which might justify a reply other than that already given by the Court in relation to the Tessili and Custom Made 26. The phrase 'place of performance of the cases. Nor can it be said — at least, in my obligation', seemingly so simple, soon gives opinion — that the circumstances under- rises to many questions. What is meant by lying the Custom Made judgment have 'matters relating to a contract'? What changed appreciably. By referring once obligation is referred to? The obligation again the question of the interpretation of to deliver the goods or to carry out the Article 5, point (1), of the Convention, the service, for example, or the obligation to Cour de Cassation has exercised the right pay the price ? How is the place of perfor- of the national courts, which has been mance to be determined? In accordance recognised by the Court of Justice in with which law? The law of the court relation to questions referred under Arti- before which the matter is brought, or cle 177 of the EC Treaty, to refer settled some other law? questions of interpretation to the Court again, if they consider it desirable to do so. 14

First, the word 'obligation' and the phrase In any case, the court will have to examine 'in matters relating to a contract' must be initially in more detail the conditions of the construed independently, 16 that is to say, claim. independently of the terms used by the national legal systems. Secondly, the national court must assess the obligation on which the claim is based and establish the law applying to that obligation in order, 29. Secondly, the court will have to ascer- finally, to determine the place of perfor- tain whether the legal relationship in ques- mance designated by virtue of that law. If it tion is subject to uniform international is the same as the place designated by the rules, a task which the constant prolifera- court's own law, the court will have tion of international agreements sometimes jurisdiction, otherwise it will not. makes more difficult, rather than easier.

For this purpose, the court will establish whether the legal relationship is contractual and will classify the relationship creating an obliga- 30. Thirdly, once the applicable law has tion in the generally accepted categories been identified, the court must determine, (contracts of sale or carriage, leases and by reference to that law, the place of loan agreements, etc.). Although this first performance of the obligation in question. task is perhaps the simplest, it is not always If no uniform rules in this connection are straightforward. For example, what is the found, the court will have to seek them in nature of the relationship between an its own law or in a foreign system.

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tion of obligations for the payment of a the ports of Le Havre in France and Santos sum of money, national legal systems are in Brazil. On arrival at the port of destina- usually content with a general reference to tion, it was found that, some of the goods the will, express or implied, of the parties. were damaged or missing and the insurance This situation will compel the court to companies therefore indemnified the con- study the substance of the case in even signee. Having been subrogated to the greater depth. 17 latter's remedies and rights, the insurers had recourse to those responsible for carry- ing the goods (the master of the vessel, the shipping company which owns it, the carrier and the insurance company covering the civil liability of the vessel) by bringing 31. At best, all this effort will have served before a court of first instance in Le Havre to confirm the jurisdiction of the court the action which has led to this reference to before which the matter has been brought the Court of Justice. or, at worst, to rule out the application of Article 5 or to confer jurisdiction upon the courts of another Member State which, if a new case is brought before them, will nevertheless have to go through the same procedure to verify their jurisdiction.

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19 — See the judgment in Case C-51/97 Reunion Européenne and Others [1998] ECR I-6511, paragraph 20. 21 — Such as a national rule fixing the place of performance of 20 — See the De Bloos judgment, cited above, paragraph 14. an obligation for carriage by sea at the port of loading.

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39. As a place situated in Brazil is desig- contract' in relation to 'contracts concluded nated as the place of performance of the at a distance'. contractual obligation, the French court has no choice but to decline jurisdiction and to refrain from taking further cogni- sance of the action as regards the applica- tion of Article 5, point (1), of the Conven- tion. The difficulty arises from the fact that 41. However, from the information avail- the first paragraph of Article 5 provides, in able I think I may conclude that the French so far as we are concerned, that 'a person court ought to have referred to the Rome domiciled in a Contracting State may, in Convention of 19 June 1980 on the Law another Contracting State, be sued.

Therefore cannot serve as a basis for attributing the solution would have been somewhat jurisdiction to a court within that territory simpler and, of course, uniform throughout and that Article 5, point (1), cannot there- the Contracting States. However, it could fore be applicable'. 22 not in itself have eliminated the risk of diverging interpretations. The reason is that Article 4(1) of the Convention provides that, where the applicable law has not been chosen by the parties, the contract is to be governed by the law of the country with which it is most closely connected.

In Spanish law, under the last indent of Article 1262 of the Civil Code, this difficulty is resolved by the presumption that the contract was concluded at the place where the offer was made. This means that, in the present case, assuming that 22 — See the judgment in Case 32/88 Six Constructions [1989] the offer is deemed to have been made at the carrier's ECR 341, paragraph 20. registered office, German law could apply.

the time the contract is concluded, the VIII— The criticism of the Tessili judg- carrier has his principal place of business is ment also the country in which the place of loading or the place of discharge or the principal place of business of the consignor is situated, it shall be presumed that the contract is most closely connected with that 44. The criticism of the case-law laid down country'. This does not appear to be the in Tessili and Custom Made has concen- case, so that the only criterion for choosing trated essentially on two aspects: the prac- the applicable law is simply 'most closely tical difficulty of applying that case-law connected' of Article 4(1). and the undesirable consequences of seek- ing the applicable substantive law in order to determine a question of jurisdiction. The fact that the courts of the plaintiff's dom- icile are more and more often imposed as a general forum for matters relating to con- tracts must be mentioned as one of these 42. If the contract was concluded in France undesirable effects. and the damage was attributable to a mistake in loading or stowing, it could be argued that the contractual obligation was most closely connected with France and therefore French law is applicable. If, on the other hand, we consider that, from the viewpoint of the obligation in question, the actual work of unloading or the State (a) The difficulties of applying the Tessili where the goods were located is of greater case-law importance, Brazil will be the designated country and Brazilian law will apply. With regard to characteristic obligations, refer- ence to the lex causae merely displaces the moment of uncertainty, and with it the 45. As I have said, the Tessili case-law subsequent risk of fragmenting jurisdiction, imposes a three-fold task on the court to a later stage of reasoning, without before which the matter is brought: inde- eliminating uncertainty altogether. pendently classifying the obligation on which the claim is based; determining the law applicable to that obligation in accor- dance with the court's own rules of con- flict; and ascertaining the place of perfor- mance of the obligation in accordance with 43. However, once the proper law of the that law. contract has been identified, the difficulties of determining the place of performance according to that law remain, and also the problems arising from the unsuitability of reference to the lex causae for resolving questions of jurisdiction. I shall revert to 46. I think I have shown sufficiently, using this point later. the present case as an example, that the

49. However, perhaps the most discoura- ging aspect of the painstaking exercise 47. I should add that, in my view, the required of the national court is that, in correct application of the Tessili judgment practice, the result it will obtain will be requires the court not only to go through either the defendant's domicile, in which the stages of reasoning described above in case it would have been sufficient to apply its internal legal system, but also to explain the general forum provided for by Article 2 them and state grounds. A court which, in of the Convention, or the plaintiff's dom- its decision, merely indicates a place of icile, which contradicts not only most performance of the obligation in question European procedural traditions, but also for the purpose of Article 5, point (1), the system of the Brussels Convention itself, which is the same as that to which correct while there is still no guarantee that either of those places is most closely connected 24 — If, having completed its examination, the court finds that it has jurisdiction, it may stili set aside the conclusions it - reached for the purpose of jurisdiction when it comes to 27 — See H. Gaudemet-Tallon, Les Conventions de Bruxelles et consider the substance of the case because 'the interpreta- de Lugano, N o 173, p. 129. tion of the said words and concepts [of civil, commercial and procedural law] for the purpose of the Convention 28 — Whereas the Civil Chamber faithfully applied the Tessili does not prejudge the question of the substantive rule method in a judgment of 25 February 1997 (Société Bateg applicable to the particular case' (Tessili, cited above in Delta v Société Ward Groupe and Others, Recueil Dalloz, footnote 3, paragraph 11). O n the other hand, as I have 1997, Jurisprudence, p. 562), a few days later, the same already said, if it declines jurisdiction, its reasoning will be Chamber upheld an order for enforcement on the ground of no use to the next court before which the matter is that the previous court had correctly determined the place brought. of performance 'by reference to the nature of the relation- ship creating the obligation and the circumstances of the 25 — O n the resistance to applying it, see G. Droz, 'Delendum case') (SA Comptoir Commercial d'Orient v Société est forum contractus ? (vingt ans après les arrêts De Bloos Medtrafina, judgment of 11 March 1997, ibid.). Again a et Tessili interprétant l'article 5, point 1, de la convention few days later, the Commercial Chamber of the same court de Bruxelles du 27 septembre 1968)', Recueil Dalloz, set aside an appeal court judgment on the ground that it 1997, p. 3 5 1 . stated no legal basis because it did not indicate the 26 — See, for example, the judgment of the French Cour de applicable law (Ernesto Stoppant SPA v SARL Stoppant Cassation (First Civil Chamber) of 6 February 1996, San France, judgment of 18 March 1997, ibid.). I am per- Cario Gruppo Alimentare SPA v SBC Vito, cited in Revue Critique de Droit International Privé, 1996, p. 504. plexed and uneasy because of the legal uncertainty caused y these inconsistent decisions.

52. There can be no doubt that the most frequent type of contract in international commercial relations is the contract of sale. 50. The second main criticism of the Furthermore, most disputes relate to the Court's method of interpreting Article 5(1) payment of the agreed price. As regards the deplores the fact that criteria which have place where payment is to be made, tradi- their raison d'être in substantive law are tionally there have been two trends in transposed into the field of jurisdictional Europe: the place of the debtor's domicile competence, in that elements specific to (Germany, Belgium, Spain, France) and rules of conduct are transferred to the field that of the creditor's domicile (Denmark, of conceptual rules or rules which create Greece, Ireland, Italy, Netherlands, United rights, such as rules of competence. 29 Such Kingdom). The first option has been con- transposition also destroys the theoretical tinuously eroded in favour of the second. Thus, Article 59(1), first sentence, of the 1964 Uniform Law on the International 29 — Kelsen observed that terms such as 'competence', 'power', Sale of Goods provided that the place of 'capacity' or 'attributability' refer to the same concept or, performance of the obligation to pay the at least, to concepts which are very close to each other because in all four cases a legal rule authorises (ermächtigt) selling price is the place where the seller is in a wide sense certain conduct and, in doing so, trans- established or, in the absence of an esta- forms it into legally relevant conduct (H. Kelsen, Reine Rechtslehre, Vienna, 1960, p. 150 et seq.). Alf Ross (A. Ross, On Law and Justice, London, 1958, p. 52 et seq.) blishment, the place of his customary and Lars Lindahl (L. Lindahl, Position and Change. A residence. Article 57 of the United Nations Study in Law and Logic, Boston, 1977, p. 194 et seq.) describe rules of competence as conceptual rules or rules Convention on Contracts for the Interna- which create rights, as opposed to rules of conduct. Rules of competence define a concept (e.g. 'legislature' or 'court') tional Sale of Goods, which came into force and make possible an activity (enacting legislation or on 1 January 1988, is, if possible, in even giving judgments) which, if they were not covered by such rules, would not exist because they are not natural more general terms with regard to the activities. The rules of competence determine which types obligation to make payment at the seller's of conduct are deemed to be legislative or judicial acts and who may carry out such acts, whereas rules of conduct domicile. govern the substance of those activities. The situation is similar with regard to powers conferred on individuals, although private law prefers the term 'capa- city'. Rules of competence define what is meant by 'contract', 'will' or 'promise' and make the activities in question legally relevant, whereas rules of conduct lay own the limits and describe the characteristics of such activities (see E. Bulygin, 'Sobre las normas de competen- 53. In the order for reference which gave cia', Análisis lógico y derecho, Madrid, 1991, p. 485 et seq.). rise to the Custom Made case, the Bundes-

55. Nevertheless, it must be said that, in 56. In his Opinion in the Custom Made principle, there is nothing pernicious in the case, Advocate General Lenz devoted the fact — which, on the contrary, is perfectly greater part of his criticism of the Court's logical — that, so far as contractual obli- case-law to this problem. After observing gations are concerned, the place of perfor- that, according to the intention of the mance should be the same as the domicile draftsmen of the Convention, the concept of one of the parties, even if it is that of the of 'place of performance' was to enable a seller. In most contracts it is customary for court closely connected with the facts to be the respective obligations to be performed designated, Mr Lenz observed that 'the at the domicile of one of the parties. What rules of the lex causae relating to the place is not legitimate 31 is to distort the function of performance may... embody elements of substantive law itself, which in this case which serve solely to apportion the risk... consists in sharing out the contractual risks and do not provide reliable indications between the different parties, in order to about the economic objective of the seller's establish competent courts conforming obligations'. 3 2 It follows that this rule is with those same criteria for sharing risks. not appropriate for designating a court closely connected with the facts of the case. 30 — Order for reference of 26 March 1992 (paragraph V, point 3(d) in fine). 31 — See G. Droz, op. cit., note 25, p. 355 in fine. 32 — [1994] ECR I-2933, paragraph 80.

Consequently, for Mr Lenz, the main defect 58. I should like to add, however, that of the method consisting in determining the determining the place of performance by forum contractus by reference to the sub- reference to the lex causae contributes stantive law applicable by virtue of the greatly to complicating the practical appli- rules of conflict is not so much an alleged cation of the Tessili principles. As I said general 'antipathy' to the jurisdiction of the previously, the main concern of substantive defendant's domicile — which he does not law — in the matter of contractual obliga- find to exist — as the fact that this method tions — is in general to share out the is useless for attaining the specific objective responsibilities or, in other words, the risk, of Article 5, point (1), namely the creation between the contracting parties.

57. Although the criticism which I have it is legitimate to define the place of just set out is entirely justified, it must be performance of an obligation by reference recognised that it arises from the De Bloos to the rules on sharing out contractual judgment and the isolation of bilateral responsibilities. What happens if it is obligations which it establishes, rather than agreed that the goods are to be carried at from the Tessili method. As I indicated above, the controversy concerning the cor- rect classification of the obligation for the 34 — For example, if, in the main proceedings in this case, purpose of Article 5(1) is outside the scope Spanish law were applicable, the court which has to give a decision on jurisdictional competence would only have, as of these proceedings. Even though in the regards carriage by sea recorded in a bill of lading, the provisions of the Law of 22 December 1949 (BOE present case the plaintiffs in the main No 358, 24 December). Article 5, point 3, of the Law, proceedings claim a sum of money, there which incorporates the Brussels Convention of 25 August 1924, provides that the carrier is to 'carry out suitably and is no doubt that they are acting by virtue of carefully the loading, stowing, preservation, transport, supervision and discharge of the goods which he carries'. subrogation to the consignee of the goods In Spanish law there do not appear to be any clearer and therefore they have brought an action indications of what must be regarded theoretically as the place of performance of the obligation for the international based on the characteristic obligation of the carriage of goods by sea under a bill of lading.

here. If the court finds that there are no mandatory rules 33 — However, I cannot help thinking that it is somewhat on the subject, it will have to fall back on the general artificial to allow, on the one hand, the isolation of principle of the autonomy of intention in matters of bilateral obligations for the purpose of applying the forum contract, as laid down in Article 1255 of the Civil Code, in contractus and, on the other, for the same purpose, to order to conclude that the place of performance of the regard the obligation to compensate for damage as obligation is none other than that designated by the equivalent to an obligation which has not been performed parties. If this is read in conjunction with the provisions on or not performed correctly. See R Gothot and D. Hol- the sharing of the risks, it appears that the place in leaux, Revue Critique de Droit International Privé, 1977, question is the same as the destination of the goods.

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the consignee's risk? Does this mean that, begin by determining the purpose of what by shifting to the port of loading the is called the forum contractus. What is the moment of the passing of the risk, the purpose of Article 5, point (1), in the place where the obligation is to be per- framework of the Brussels Convention? formed is also moved? Or, where the law Why is it capable of creating a special provides that, in certain circumstances, the jurisdiction at the place of performance of a carrier is not liable for damage arising from contractual obligation and not, for exam- the fact that the vessel is not seaworthy, 35 ple, at the place where the contract was does this mean that, for the purpose of an concluded? action for breach of contract, a carrier who pleads the statutory defence may claim that the place where he put goods on board the defective ship should be regarded as the place of performance of his obligation, on the ground that that is where his responsi- bility ceased in the case in question?

(a) The general objectives of the Brussels Convention

The rules on the sharing of commercial risks are of no use at all for designating the 60. Article 5, point (1), forms part of the competent court. Convention which was adopted by the Member States on the basis of Article 220 of the EC Treaty, which provides that 'the Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals... the simplification of form- alities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards'. The scope of the Brussels Convention is clearly IX — The objectives of Article 5, point (1), much wider than the specific objective laid of the Convention down by Article 220. However, I wish to emphasise the aim of 'simplification' which it mentions.

63. The main aims of the Brussels Conven- tion as a whole are reflected most clearly in 61. The corollary of the second objective of what is conventionally called its general 'legal certainty' 38 which imbues the whole forum, that is to say, the defendant's of the Convention is to provide parties to domicile. That forum meets, appropriately actions with foreseeable decisions. and at one and the same time, the aims of uniformity, foreseeability, avoiding a multi- plicity of jurisdictions, ease of designation and legal protection. However, the Con- vention provides for a limited number of special jurisdictions, the justification for

Conse- and the defendant reasonably to foresee the quently, there is no doubt that the adoption court before which he may be sued'. 39 of a special, optional forum in contractual matters must also have an equally specific justification. 36 — The object of which, as interpreted by the Court, is to 'eliminate obstacles to legal relations and to settle disputes within the sphere of intra-Community relations' (Tessili judgment, cited above, paragraph 9). 37 — An important component of which is 'to ensure uniformity in all the Member States' (Case 189/87 Kalfelis [1988] ECR 5565, paragraph 17). Indeed, 'the principle of legal certainty in the Community legal system and the objectives of the Brussels Convention in accordance with Article 220 of the Treaty, which is its origin, require in all Member States a uniform application of the legal concepts and legal classifications developed by the Court in the context of the Convention' (Joined Cases 9/77 and 10/77 Bavaria and 64. Article 5, point (1), is generally said to Cermanair [1977] ECR 1517, paragraph 4). have two main objectives: the proximity of 38 — See the judgments in Case 38/81 Effer v Kantner [19821 ECR 825, paragraph 6, and in the Handle case, cited the court with jurisdiction to the subject- above, paragraph 11. 39 — Case C-125/92 Mulox IBC [1993] ECR I-4075, paragraph

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matter of the dispute and procedural bal- basis of jurisdiction should be established. ance between the parties. In any case, I repeat that these considera- tions, although important, have no direct bearing on the outcome of the main proceedings, which concern, as we know, the performance of the characteristic obli- gation of the contract.

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from considerations of the proper adminis- 70. Personally, I think that this last argu- tration of justice, from the general principle ment, although original, has insufficient of the autonomy of the contracting parties' support in the legal traditions of the intention. Member States to be regarded as authentic. Furthermore, I do not think this justifica- tion is necessary or useful. It is true that in practice Article 5, point (1), by conferring jurisdiction in many cases on the courts of the plaintiff's domicile, may to some extent 68. Certain commentators add that the counterbalance the general forum. How- creation of the forum solutionis enables ever, this is due more to the simple fact that, the advantages and risks connected with generally, obligations have to be performed determining the competent court to be where at least one of the parties resides, shared fairly between the plaintiff and the rather than to a supposed intention to defendant. 43 In this way, Article 5, point achieve a balance between the parties to a (1), is said to act as a counterweight to the contract so far as jurisdiction is concerned. general rule of the forum of the defendant's domicile.

43 — Sec F Schack, Der Erfüllungsort im deutschen, auslän- dischen und internationalen Privat- und Zivilprozeßrecht, Frankfun, 1985, paragraphs 144 et seq., 207 and 218. 44 — See A. Huet, 'La ubicación del artículo 5 en el sistema del Convenio. La competencia en materia contractual', in Competencia judicial y ejecución de sentencias en Europa, It follows from what has been said that the Madrid, 1993, pp. 75 and 76. 45 — Statistics compiled by Mr. G. Droz show that, of the 48 proper interpretation of Article 5, point cases determined in relation to Article 5, point (1), 24 were (1), must lead to designating as the compe- found to fall within the jurisdiction of the court for the defendant's domicile. In other words, in half of the cases tent court that which is situated at a place the general forum of Article 2 of the Convention was chosen (statistics published in Revue Critique de Droit having a close connection with the con- International Privé, 1987, pp. 802 and 803). tractual obligation in question, a place

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which is determined by reference to the 73. More than 20 years have elapsed and, general requirements of foreseeability, of although Article 5, point (1), has been the avoiding a multiplicity of jurisdictions, of subject of more judicial controversy and uniform criteria and of ease of designation. has been given more attention by commen- tators than any other provision of the Brussels Convention, the possible solutions are in substance still the same, namely:

46 — As regards the obligation to guarantee goods against hidden defects, Dunlop argued that the place of perfor- mance should be that where the defective goods are located 47 — I am clearly discarding any interpretation of 'place of because that is where any defects may be examined easily performance' which is necessarily based on the substantive and, if necessary, the goods can be repaired ([1976] ECR lex fori, because it would inevitably give rise to the 1477). dispersion of jurisdictions.

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78. It is not surprising that the Court has preferred autonomous interpretation in almost all cases. Thus, it has interpreted 75. 'An autonomous interpretation of the independently not only the phrase 'matters terms used in the Convention is preferable relating to a contract', 49 but also, among in principle because it helps to secure the others, 'civil and commercial matters', 50 uniform application of the Convention and 'matters relating to tort, delict or quasi- thus contributes to the realisation of its delict' 51 and 'maintenance creditor'. 52 It underlying purpose, which is to unify the seems to have abandoned this method only jurisdiction rules of the Contracting States. in very rare cases, namely those in which Such unification is inevitably impeded if the the Convention itself calls for recourse to meaning of the terms used in the Conven- national law (for example, in relation to the tion varies according to the applicable law.' term 'domicile') and, precisely, Article 5, I fully concur with the views of Advocate point (1), but even with regard to the latter, General Jacobs expressed in the Mulox case. 48 49 — See paragraph 27 of this Opinion. 50 — Case 29/76 LTU v Eurocontrol [1976] ECR 1541. 48 — Mulox IBC judgment, cited above. Opinion published in 51 — Kalfelis judgment, cited above. [19931 ECR I-4091. 52 — Judgment in Case C-295/95 Farrell [1997] I-1683.

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only in relation to the definition of 'place of causae may have no connection with the performance'. 53 subject-matter in question is a risk inherent in all cases of special jurisdiction. The assumption that the connection exists jus- tifies the creation of the special forum of the place of performance of the obligation. Nevertheless, when applying this special 79. Autonomous interpretation therefore jurisdiction rule, a court may be guided meets the aims of uniform criteria and ease only by the formal criteria adopted by the of designation. In the following paragraphs Convention. 56 I wish to make the point that, in relation to the other aims of the Convention, the technique of the Tessili judgment offers no advantages. 81. The Court itself justifies its preference for recourse to the lex causae by invoking legal certainty and foreseeability. 57

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If law, recourse must be had to the lex causae. it is a question of the characteristic obliga- In other words, the court before which the tion of the contract, as in the present case, matter is brought must first find the law whichever law is consulted will probably applicable to the legal relationship in reply that the place of performance is the question. For this purpose it must, since it place chosen by the parties and, in default came into force, use the Rome Convention of agreement on the point, it must be of 19 June 1980 on the Law Applicable to designated in the light of the circumstances Contractual Obligations, Article 4(1) of of the relationship creating the obligation which provides that 'to the extent that the in question, that is to say, by means of an law applicable has not been chosen.

case. Moreover, I fail to see why the criterion of the closest connection provided for by the 1980 Rome Convention should permit solutions more uniform than those based on the criterion of the place of 85. In addition, there is no guarantee that performance, which is itself also relatively the Tessili method will designate a court indeterminate. 59 — Before the 1980 Rome Convention came into force, a Spanish court dealing with an action for breach of contract brought by a Nigerian national residing in the frontier town of Irun against a compatriot domiciled two streets further down, in Hendaye (France) had to determine, in accordance with the Tessili case-law and by virtue of

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closer to the facts or more closely con- proposal put forward by Mr Lenz in the nected with the obligation in question than Custom Made case. the court which would be designated by recourse to an autonomous interpretation.

Mr Lenz began his original analysis by observing that a forum designated as hav- ing jurisdiction on the basis of a concept of (c) Second provisional conclusion substantive law can be justified only on procedural grounds, namely a ground such as physical proximity to the relationship at issue. Therefore, according to Mr Lenz, it is 86. Accordingly, I arrive at the second necessary to distinguish clearly between the provisional conclusion of my analysis. The sharing of the economic risks, which is autonomous method has undoubted advan- effected by substantive law, and the proce- tages by comparison with conflictualist dural grounds which are the subject of interpretation, particularly with regard to Article 5. It is dangerous to confuse the two the uniformity of criteria and the ease of concepts: under the Uniform Law on the designating the competent courts under International Sale of Goods (and particu- Article 5, point (1). Regarding the aims of larly Article 59(1)), that is to say, the foreseeability, avoidance of a multiplicity of substantive law applicable by virtue of the jurisdictions, and proximity or connection, Tessili judgment, the result would be to the Tessili method merely succeeds in create, in the framework of Article 5, point postponing recourse to a connecting ele- (1), a true general jurisdiction of the ment which necessitates examination of the defendant's domicile. facts of the case. However, because of its technical complexity, the conflictualist method encourages mistakes when it is applied and even when it is not applied, with the legal uncertainty which that entails. I share the concern expressed by Mr Lenz, although I still consider that the practical difficulties of applying it and the inevitable risk of divergence and legal uncertainty which it involves are the main defect of the conflictualist method.

89. As Mr Lenz himself admits, his propo- sal differs only very slightly from the De Bloos judgment, in so far as 'contractual obligation' must be taken to mean only the obligation 'which is far the more likely to 90. To sum up, the conclusion reached by result in the determination of a court Advocate General Lenz implies a certain physically proximate to the relationship rectification of the De Bloos judgment (by than the obligation at issue'. 60 According introducing the concept of the characteris- to Mr Lenz, the Tessili case-law would tic obligation under a different name) and, continue to apply, albeit not for the pur- in practice, the abandonment of the Tessili poses of determining the place of perfor- case-law in favour of an independent mance of the obligation at issue, but the interpretation, according to which the place of performance of the counter-obliga- forum contractus would be the place closest tion of the other party (paragraph 78). to the subject-matter. However, the Advocate General then 'qua- lifies' that statement: 'As I used such elements when I examined the rules on the place of performance of the obligation to make payment as a reason for diverging from the substantive law of the contract, on 91. Although I am in favour of the the ground that those rules could not serve approach taken by my eminent colleague, to determine a court which was physically I differ as to the minimum theoretical proximate to the relationship at issue, it criterion for the independent interpretation would seem illogical to use another method preferred by Mr Lenz, that is to say, when considering the rules on the place of proximity to the subject-matter. Such performance of the seller's obligation to proximity or, if you will, the connection deliver the goods'. And Mr Lenz concludes with the contract, as objectives of the by proposing a completely independent provision, are the foreseeable result of interpretation of the place of performance independent determination, and not the in that case: '... in the case of disputes criterion for interpretation. about the payment of the price arising on account of alleged defective performance of the counter-obligation... the courts for the place at which the goods were intended to

93. This point leads me to what is perhaps the main criticism (or the main apprehen- sion) of independent interpretation in this 95. The difficulties created by the case-law sense, which consists in saying that it laid down in the Tessili judgment suggest would compel the Court to determine, case that the Court of Justice should take a new by case, the place of performance of each of approach in its case-law. Although the the innumerable types of contract. 62 interpretation proposed by the Tessili judg- ment has prevailed for 20 years and although it was solemnly followed in the Custom Made judgment, it has not gained acceptance by the national courts, which follow it very unequally and, above all, very imperfectly. The fact is that the correct application of the Tessili technique is a matter of fiendish difficulty. 63 94. In my opinion, it is an illusion to think that it is possible to make an exhaustive list of every kind of contractual obligation, present and future, and to attribute theore- tically a specific place of performance to each of them. Autonomy of intention does 96. The referring of a question by the not lend itself to classification. Further- French Cour de Cassation, which is famil- more, without greater precision in the text iar with the position adopted by Commu- of the Convention, this exercise would nity case-law, must be understood as a compel the national courts to request a desperate call for the aim of uniformity that preliminary ruling from the Court of Justice the Court must pursue to be attained in the whenever they are confronted by a new form of interpretive criteria, of more or less type of obligation (the possibilities are great scientific exactitude, but which meet endless), thus defeating the Convention's aim of simplification. Any criterion for interpretation must be simple and unam- 63 — It should be remembered that, when the representatives of biguous. the intervening governments were questioned at the hearing about the result to which application of the Tessili method would have led in their respective national systems of law, none of them was able to give a satisfactory answer — and they must be presumed to be experts in the 61 — [1994] ECR I-2947, paragraph 1 of the conclusion. matter. Consequently, how could the Tribunal de Com- 62 — This is nevertheless proposed by the governments of merce, which does not even consist of professional judges, be expected to give an answer? Germany and the United Kingdom.

97. I think the time has come for the wisdom and prudence of the Court of Justice to prevail once again. There must 99. The third method of interpretation be a change of case-law to interpret Arti- which I mentioned above is, as I have said, cle 5, point (1), of the Brussels Convention a variant of the first or, rather, a concrete in accordance with the requirements of autonomous interpretation as opposed to social reality. what could be called a theoretical autono- mous interpretation. Whereas in this last version there would be a theoretical defini- tion of the place of performance of each of the characteristic contractual obligations, in the version which I now put forward the theoretical aspect would be confined to setting out a very simple criterion for 98. The temptation to wait for the neces- interpretation, leaving the national court sary change to come from the negotiations to apply it to the particular case. concerning the amendment of the Brussels Convention now taking place within the Council should be resisted. 6 4 Firstly, because such conduct would be incompa- tible with the characteristics of the judicial 100. According to this proposal, 65 the function: behind any particular case there court before which the matter is brought are individual parties who, after years of must determine 'the place of performance litigation, are entitled to a reply in law, of the obligation' by reference to the irrespective of the vicissitudes of some particular circumstances of the case and political negotiations. Secondly, because taking account of the nature of the relation- experience shows that the outcome of such ship creating the obligation in question. negotiations is always uncertain, as is also the date by which a conclusion must be reached. Finally, since the question is one of procedural technique, no one is better placed than the national court to find a solution which most skilfully combines the 101. I cannot deny that this approach interests of the proper administration of obliges the court to assess the facts of the case, but any solution, as I explained

I admit that this assertion does not apply to mere payment obligations. After all, it is easy to see that it is the existence of different rules in Europe regarding the place where such obligations must be 102. It is a characteristic of administration fulfilled which has led to the use of the of human justice that, when certain factual conflictualist method. It is all the fault of conditions are attached to a rule, it may De Bloos! From the very beginning, the happen that different courts reach different answer should have been to take account conclusions. That, however, is inevitable only of the characteristic obligation of the and the legal system must tolerate it. What contract for the purpose of Article 5, point is more difficult to accept, from the view- (1). Then it would have been possible, in point of the proper administration of the overwhelming majority of cases, to justice — which, after all, is the object of designate a place of performance for pro- the whole Convention — is that, merely in cedural purposes close to the essential order to ascertain whether the court before elements of the contract. However, in order which the matter was brought has interna- to avoid this reasonable construction of the text of the Convention, which would have been entirely appropriate to its aims, a 66 — See E. Jayme, 'Ein Klägergerichtsstand für den Verkäu- fer — Der EuGH verfehlt den Sinn des EuGVU', I Prax, 1995, p. 13 et seq., in particular p. 14. 67 — See F. Pocar, 'Las competencias especiales del artículo 5 del Convenio en materia delictual y en materia de explotación 68 — In breach of Article 6(1) of the European Convention on de un establecimiento secundario', Competencia judicial y Human Rights, which provides that everyone is entitled to ejecución de sentencias en Europa, op. cit., p. 119 et seq. a hearing 'within a reasonable time'.

104. The solution proposed by Mr Lenz in the Custom Made case took an autono- mous approach. However, in my opinion, proximity to the subject-matter (to which I 106. Consequently, I think that the criter- prefer the 'connection with the dispute', as ion of 'proximity' should play only a I explained) cannot in itself be the criterion secondary part in interpreting the Conven- for determining the forum executionis, but tion's criterion of 'place'. My choice is the main justification for creating that based not only on arguments supported by special jurisdiction. The draftsmen of the the authority of the text of the Convention, Convention considered it appropriate to however important they may be, but it also provide for the possibility of bringing an has a deeper justification. Firstly, the con- action before the court of the place of cept of 'proximity to the subject-matter' performance of the contractual obligation seems to me relatively more imprecise than in question because, among other things, 'place of performance' (defined merely by that forum would in practice be close to the reference to the circumstances of the case subject-matter. If the intention had been and the legal relationship in question), with that, in matters relating to a contract, the the increased risk of multiplication of court closest to the subject-matter should potential jurisdictions. 71 Secondly, I con- always have jurisdiction, why not have said sider that any provision, including proce- so? 69 dural provisions, in contractual matters should be interpreted so as to take best into account the actual source of the

relationship creating the obligation: the the place of performance of that obligation intention of the parties. When the court was the place designated as such by the attempts to determine the place of perfor- parties. Without the need for long digres- mance of an obligation, clearly it must first sions concerning the law applicable to the and foremost establish what exactly was or legal transaction in question, it seems clear could have been the will of the parties, from the facts of the main proceedings that without whose consensus the obligation the port of destination is that specified by would not exist. If the court can establish the bill of lading, which is Santos, in Brazil. from the circumstances of the case the place On that ground, it must be deemed to be of performance intended expressly or impli- the place of performance. Where the courts citly by the parties, taking into account the of a State which is not a party to the nature of the legal relationship in question, Convention are designated, the special the forum contractus designated in this way jurisdiction of Article 5 lapses. In the will have the legitimacy of having been absence of other concurrent bases of jur- intended, albeit indirectly, by the parties, isdiction, the French court must decline and will also be justified by its foreseeable jurisdiction. I should point out, however, proximity to the subject-matter. In other that this question must be examined by the words, the defendant may be sued in the national court and not by the Court of court for the place of performance of the Justice. contractual obligation because, in a certain way, he will have consented, by the expres- sion of his will — which it will be the court's task to ascertain — to the creation of that special basis of jurisdiction. Clearly, 108. To sum up, the forum designated by the court which is competent by reason of the place of performance of a contractual the purely objective circumstance that it is obligation by reference to the circum- close to the subject-matter will not have stances of the case, taking account of the such legitimacy. relationship creating the obligation in ques- tion, combines the advantages of autono- mous interpretation with those which fol- low from a simple, unequivocal criterion for all contracts. It does not in itself entail 107. If the court of first instance had any greater dispersion of jurisdiction than applied this criterion to the present case, that occasioned by the Tessili technique and on the basis of the information avail- itself, and it observes scrupulously the letter able to the Court of Justice, it seems that, and the spirit of the Convention. Any taking account of the circumstances of the doubts which may arise in determining it case and the fact that the obligation in must be resolved in conformity with the question is to carry goods without dama- criterion of the connection which the ging them, the court of first instance could dispute has with a specific place, as that is easily have found that, in relation to parties the specific purpose of the forum contrac- actually bound by a contract of carriage, tus created by the Convention.