JUDGMENT OF 17. 1. 1980 — CASE 56/79 ZELGER v SALINITRI

In Case 56/79 REFERENCE to the Court of Justice under Article 3 of the Protocol of 3 June 1971 on the Interpretation of the Convention of the European Communities on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 by the Bundesgerichtshof [Federal Court of Justice] for a preliminary ruling in the proceedings pending before that court between

THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (President of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges, Advocate General: F. Capatorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted to the Court

A — Observations of the plaintiff in the main action

B — Observations of the Commission

C — Observations of the Government of the United Kingdom

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Written observations submitted to the Court

A —. Observations of the plaintiff in the main action

B —. Observations of the Commission

1. It is true that the different view taken by these two courts is in conformity with the provisions in force in the Federal Republic of Germany: the German legislature introduced certain restrictions concerning agreements conferring jurisdiction under Article 38, as amended, of the Zivilprozeßordnung [German code of civil procedure] and endeavoured to ensure that such restrictions could not be circumvented by an agreement of the parties as to the place of performance, in order — the Commission says — to avoid the possibility of escaping the formalities required by Article 17 of the Convention on agreements conferring jurisdiction.

2. The two courts also state that the concept of place of performance of the obligation in Article 5 (1) of the Convention refers only to the place of performance determined by the law, and not to the place of performance determined by the agreement.

C —. Observations of the Government of the United Kingdom

III —. Oral procedure

1. By order of 15 March 1979, received at the Court Registry on 11 April 1979, the Bundesgerichtshof [Federal Court of Justice] referred to the Court, under Article 3 of the Protocol of 3 June 1971 on the Interpretation of the Convention of Brussels of 27 September 1968 (hereinafter referred to as the Convention), a question concerning the interpretation of Article 5 (1) and 17 of the said Convention.

2. It follows from the wording of this question that the national court is asking whether an agreement such as that described, in order to found jurisdiction under Article 5 (1) of the Convention, is dependent upon observance of the form prescribed by Article 17 of the Convention, according to which provision the court of the Contracting State specified by the parties — of whom at least one must have his domicile in the territory of a Contracting State — as having jurisdiction to settle any disputes which have arisen or may arise in connexion with a particular legal relationship shall have exclusive jurisdiction, provided that it has been specified by an agreement in writing or an oral agreement evidenced in writing.

3. It is appropriate to point out that Article 5 (1), which occurs in Section 2 of Title II of the Convention intitled special jurisdiction, creates a ground of jurisdiction which is an exception to the general rule of jurisdiction provided for in Article 2 of the Convention; the provisions of Article 5, which provide that in matters relating to a contract a defendant domiciled in a Contracting State may be sued in the courts for the place of performance of the obligation in question, introduce a criterion for jurisdiction, the selection of which is at the option of the plaintiff and which is justified by the existence of a direct link between the dispute and the court called upon to take cognizance of it.

4. By contrast, Article 17, which occurs in Section 6 of the Convention intitled Prorogation of jurisdiction and which provides for the exclusive jurisdiction of the court designated by the parties in accordance with the prescribed form, puts aside both the rule of general jurisdiction — provided for in Article 2 — and the rules of special jurisdiction — provided for in Article 5 — and dispenses with any objective connexion between the legal relationship in dispute and the court designated. It thus appears that the jurisdiction of the court for the place of performance (provided for in Article 5(1)) and that of the selected court (provided for in Article 17) are two distinct concepts and only agreements selecting a court are subject to the requirements of form prescribed by Article 17 of the Convention.

5. Consequently, if the parties to the contract are permitted by the law applicable to the contract, subject to any conditions imposed by that law, to specify the place of performance of an obligation without satisfying any special condition of form, an agreement on the place of performance of the obligation is sufficient to found jurisdiction in that place within the meaning of Article 5 (1) of the Convention.

6. The answer to the question put by the Bundesgerichtshof must therefore be that if the place of performance of a contractual obligation has been specified by the parties in a clause which is valid according to the national law applicable to the contract, the court for that place has jurisdiction to take cognizance of disputes relating to that obligation under Article 5 (1) of the Convention of Brussels of 27 September 1968, irrespective of whether the formal conditions provided for under Article 17 have been observed.

7. The costs incurred by the Government of the United Kingdom and the Commission of the European Communities which have submitted observations to the Court are not recoverable.

8. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the question referred to it by the Bundesgerichtshof by order of 15 March 1979, hereby rules: