OPINION OF MR CAPOTORTI — CASE 140/77 BERTRAND v OTT

Mr President,

Members of the Court,

1. In the case which concerns us today the Court is required to interpret the provisions of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of Judgments in Civil and Commercial Matters. The question put by the French Cour de Cassation, Civil Chamber, is as follows: whether the sale of a machine which one company agrees to make to another company on the basis of a price to be paid by way of two equal bills of exchange payable at 60 and 90 days can be held to be a sale of goods on instalment credit terms within the meaning of Article 13 of the Brussels Convention. I would emphasize the precise and circumscribed nature of that request: the answer thereto must determine the concept of sale of goods on instalment credit terms, to be found in the said Article 13, with reference to the stated case of the sale of machinery between two commercial undertakings. In accordance with my usual practice, I think it useful to give a brief summary of the facts. In February 1972 Bertrand, whose registered office is in France, purchased from the undertaking Paul Ott, whose registered office is in the Federal Republic of Germany, a machine tool which was duly sent to the purchaser and installed. In payment of the purchase price the purchaser issued two bills of exchange payable at 60 and 90 days, as stated above. However, Bertrand became partially insolvent; that prompted the vendor to bring proceedings against it before the Land-gericht Stuttgart, which court gave judgment against the defendant on 10 May 1974. One year later the Tribunal de Grande Instance, Le Mans, issued an order for enforcement of that judgment within the meaning of Article 31 of the Brussels Convention. On 20 May 1976 the Cour d'Appel, Angers, dismissing the appeal by Bertrand, confirmed that exequatur. Thereafter the dispute was brought before the Cour de Cassation; it is at that point that the question which I have restated to the Court has a risen

2. In their written observations the parties to the judgment on the merits commented at considerable length on the problem of the criteria to be adopted for the interpretation of the Brussels Convention, and more particularly of Article 13 thereof. The decision of this Court of 6 October 1976 in Case 12/76 Tessili v Dunlop ([1976] ECR 1473) was cited, amongst others. Indeed that decision, having stated that the Convention frequently uses words and legal concepts drawn from civil, commercial and procedural law, which are capable of a different meaning from one Member State to another, leaves open the choice between two methods of interpretation: such words and concepts may be considered either as independent and common to all the Member States or as implying a reference to the substantive law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought. I would note, in this connexion, that the course followed in all successive case-law of the Court concerning the interpretation of the Brussels Convention has been clearly orientated towards attributing pre-eminence to the first of those choices, making every possible effort to give independent value to the concepts employed in the Convention, even when, at first sight, they display a marked relationship to the legal system of each Member State. The Court has constantly sought to identify a common nucleus of concepts incorporated into the Convention, even where the task appears rather arduous: this is demonstrated in particular by the judgment of 14 October 1976 in Case 29/76 LTU v Eurocontrol ([1976] ECR 1541) and of 22 October 1977 in Case 43/77 Industrial Diamond Supplies v Riva ([1977] ECR 2175). The reasons for this tendency are self-evident: uniformity of interpretation of the rules contained in the Convention provides the fullest guarantee of that free movement of decisions which has justly been seen as once of the primary objectives of the Convention itself. In short, therefore, the method consisting in reference to the national system applicable on the basis of the private international law of the forum could now be said to be a residual method, that is to say, a method which is called upon only when the search for the independent meaning of a given concept within the context of the Convention has given a decidedly negative result.

3. I shall begin by assessing the position and function of Articles 13 to 15 (that is to say, Section 4 of Title II, composed precisely of those three articles) in the general system of the Convention. It is clear, in the first place, that the rule as to jurisdiction contained in Article 14 is in the nature of a special rule; it is sufficient to consider its content in relation to other articles of the Convention which are of wider scope. The first paragraph of the provision in question allows a seller on instalment credit terms to be sued in the courts of the State in which the buyer is domiciled, as well as in the place where the seller is domiciled, by way of exception from the general rule contained in Article 2. However, where the seller is suing the buyer proceedings may be brought, pursuant to the second paragraph of Article 14, only in the courts of the State in which the defendant is domiciled; that provision is in accordance with the criterion contained in Article 2 but excludes the application of other provisions, such as Article 5 (1) concerning jurisdiction in matters relating to contract and Article 6 (1) on the eventuality of a number of defendants. The special nature of Article 14 is, furthermore, confirmed by the limitations which Article 15 places on the possibility of a change of jurisdiction by agreement between the parties.

4. I referred above to the importance of having recourse to the general principles which may be derived from the various laws of the Member States in order to determine independently the meaning of the expressions adopted within the Convention. It must therefore be asked whether such general principles exist in relation to the subject-matter with which we are concerned and, if so, what they provide.

5. Mention should be made of two further circumstances which indicate how written Community law has been developing in the direction indicated. The first, and most important, is the following: the ad hoc Working Party on Adjustments to the Conventions under Article 220 of the EEC Treaty, in drafting the amendments to the Brussels Convention which were to accompany the accession of the United Kingdom, Ireland and Denmark, proposed modifications to Articles 13 to 15, and suggested, inter alia, that the sphere of application of Article 13 should be restricted to contracts entered into by a person for a purpose which could be considered extraneous to his professional or trade activity, thereafter to be referred to as the consumer. In consequence, in Articles 14 and 15 reference would no longer be made to the buyer or the borrower, but to the consumer (working document No 5, revised version; Article 9a of the Accession Convention). It is clear that that draft cannot influence the interpretation of Article 13 which must now be provided; however, it seems to me interesting to be able to say that the solution suggested by myself coincides in this matter with the foreseeable course of development of the Brussels Convention. In the second place, I would recall that the draft proposal for a directive on consumer credit, drawn up by the Commission, places contracts for the sale of goods on deferred payment terms within the category of consumer credit agreements and defines the consumer as a natural person who is not acting in pursuance of a commercial or professional activity. That means that Community action for the protection of the consumer impinges on the field of sales on instalment credit terms from an angle which coincides with the conception of that phenomenon accepted by the Brussels Convention.

6. In conclusion, it is my opinion that the question put by the French Cour de Cassation, Civil Chamber, in the case of Bertrand v Ott should be answered as follows by this Court: The sale of a machine agreed between two companies on the basis of a price to be paid by way of two deferred bills of exchange cannot be held to be a sale of goods on instalment credit terms within the meaning of Article 13 of the Brussels Convention.

1 Translated from the Italian.