Opinion Of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The Convention of Brussels of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters provides, as the Court is aware, that in the field of contracts the courts for the place of performance of the obligation in question may also have jurisdiction (Article 5 (1)). That place is not always defined by rules of law alone; the contracting parties may agree to fix it, thereby producing the indirect result of invoking a special jurisdiction in terms of the Brussels Convention.

2. I make the observation first of all that the issue has to be considered upon the hypothesis that two parties to a contract have concluded an oral agreement concerning the place of performance of the obligation which later forms the subject of dispute; it is not necessary to know whether, in this case, the hypothesis matches the true facts. For what it is worth, the plaintiff in the main proceedings maintained that there was also agreed, at the time, an oral agreement conferring jurisdiction, but that remains outside our purview.

3. The answer to the question which has been referred to the Court therefore seems so clear that one may wonder how the courts of first and second instance were ever able to decide it differently. It is likely that they were influenced to a certain degree by the direction recently taken in the law of civil procedure in the Federal Republic, which has restricted both cases of prorogation of jurisdiction (by amending Article 38 of the Zivilprozeßordnung [Code of Civil Procedure]) and the possibility of founding jurisdiction on the place of performance of the contract where that is determined by means of agreement between the parties (Article 29 (2) of that Code has also been amended). There are naturally good reasons for this approach: the intention was to avoid the formal barriers against agreements conferring jurisdiction being circumvented by the specifying of the place of performance in agreements free of all formality so as to achieve, in the end, the same result — that of specifying a different court from the one generally having jurisdiction — by different and simpler means.

1 Translated from the Italian.