Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This reference for a preliminary ruling concerns the interpretation of certain aspects of the expression matters relating to a contract which appears in Article 5 (1) of the Brussels Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. According to that provision, a person domiciled in a Contracting State may, in another Contracting State, be sued: (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question.

2. For the purposes of a proper understanding of the matters at issue in the dispute it is appropriate to note from the outset a number of details relating to the structure and function of the organization which is the appellant in the main proceedings. Its name is the Zuid Nederlandse Aannemers Vereniging [South Netherlands Contractors' Association] (hereinafter referred to as the Association) and its registered office is in the Netherlands. It is a legal association of the construction undertakings which operate in the southern provinces of the Netherlands, in Limburg, North Brabant, Zeeland and in part of the province of Gelderland. As is stated in paragraph 1 of the judgment making the reference, the object of the Association is to promote the economic, financial, legal and other interests of its members and of undertakings in the building industry in general in so far as those interests relate to ... price regulation in the context of invitations to tender for contracts and the consequences thereof for undertakings. So as to enable it to carry out those functions, the Association's documents of constitution specifically empower it both to adopt internal rules of a- general character, which are binding upon the members, and to take decisions. Such decisions are also binding and are based on both the documents of constitution and the abovementioned general rules. They concern solely the position of individual contractors.

3. Having thus explained the context of the litigation in the main proceedings, I will now give a brief summary of the facts in the case.

4. The first matter which has to be clarified concerns the scope of the expression matters relating to a contract. It is well known that the expressions and legal concepts drawn from civil, commercial and procedural law which appear in the Brussels Convention may be interpreted in two ways. They may be given an independent meaning which is therefore common to all the Member States or they may be held to refer to the law applicable under the rules of conflict of laws of the court before which the matter was first brought. On that subject this Court has stated that neither of these two options rule out the other since the appropriate choice can only be made in respect of each of the provisions of the Convention to ensure that it is fully effective having regard to the objectives of Article 220 of the Treaty. (judgment of 6. 10. 1976 in Case 12/76 Tessili v Dunlop [1976] ECR 1473, at p. 1485, paragraph 11 of the decision).

5. In almost all the legal systems of the Member States the relationships between an association and its members are recognized as being contractual in nature. Under Belgian, French, Italian, Danish and English law and under the law of Scotland contractual status attaches either to the act of becoming a member of the organization or to the rights and obligations resulting from membership. For example, according to French legal literature the creation of an association depends on the intention of the parties and in French case-law the relationships between an association and its members are considered to be contractual. The Italian system follows the same line. Article 1420 of the Civil Code provides that the participation of more than two persons in an agreement (as in the case of an association's documents of constitution) is a genuine contract, even if the contributions of each [member] are directed towards the achievement of a common aim. As regards the obligations laid upon the members as the result of their belonging to an association, the Italian Cone di Cassazione [Court of Cassation] has held that the act which creates the bond between a member and an association brings about the same situation as that which normally exists under bilateral contracts; the association may therefore apply to the courts under Article 1453 of the Civil Code (on the dissolution of commutative contracts on grounds of nonperformance) for the expulsion of those members who fail to fulfil their obligations (Court of Cassation, 2 March 1973, No 579). English law adopts the same position with reference both to an association's documents of constitution and to the obligations laid upon the members as the result of their belonging to that association. I would mention in this respect the case of Lee v Showmen's Guild of Great Britain [1952] 2 QB, 329, 341 in which Lord Denning emphasized the contractual nature of the relationship between a member and an association in order to show that the jurisdiction of the court was not restricted to the protection of proprietary rights.

6. Articles 5 and 6 of the Convention list the situations in which a defendant may be sued in a Contracting State other than that in which he is ordinarily resident. As is noted in the Jenard Report (OJ C 59, 1979, p. 1 et seq., in particular p. 22), the forums provided for in these articles supplement those which apply under Article 2, that is to say the courts of the Contracting State in whose territory the defendant is ordinarily resident. The introduction of alternative forums directly ascertainable by reference to the Convention (that is to say without its being necessary to refer to the rules of territorial jurisdiction in force under the lex fori) is essentially designed to meet a requirement of foreseeability or, if the term is preferred, of legal certainty. In that way, the report states (p. 22), it is intended to facilitate implementation of the Convention because by ratifying the Convention, the Contracting States will avoid having to take any other measures to adapt their internal legislation to the criteria laid down in Articles 5 and 6. Indeed, it is clear that the most appropriate means of meeting the need for certainty to which I have alluded is the independent interpretation of the expression matters relating to a contract which results in a uniform concept applicable in the same manner in all the Member States.

7. In the written procedure and at the hearing, attention was drawn to the connection between the Brussels Convention and the Convention on the Law Applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980 (OJ L 266, 1980, p. 1). Article 1 (e) of the latter Convention (which however is not yet in force) excludes from its field of application questions governing the law of companies and other bodies corporate or incorporate and the personal liability of officers and members as such for the obligations of the company or body. Peters' representative argues on the basis of the abovementioned rule that the obligations laid upon the members of an association as a result of their joining it do not have a contractual basis and that confirmation of their non-contractual nature is to be found precisely in the fact that they are excluded from the scope of the Convention which determines the laws applicable to contractual obligations. On the other hand, the Commission and the Federal Republic of Germany infer from the same conclusion that the obligations in question are contractual in character. They observe that to have foreseen the necessity of providing for that exclusion suggests a fear that in the absence of an express provision such obligations would by virtue of their contractual nature fall within the sphere of application of the Convention.

8. In addition to asking whether the claims which the association bases on the obligations arising from membership come within the scope of application of Article 5 (1), the Hoge Raad also asks whether it makes any difference whether the obligations in question arise simply from the act of becoming a member, or from that act in conjunction with one or more decisions made by organs of the association. I consider that this second question should be answered in the negative. The obligations arising from a decision of such a body are founded on the agreement by which a bond of association is created. By means of such an agreement the contracting parties manifest their intention to accept the internal rules of the association and therefore agree inter alia to be bound by the decisions taken by the organs of the association. In other words, it may be said that ultimately the binding effect of such decisions is, like that of the act of becoming a member, based on the contractual intention of the parties.

9. In the light of all the considerations set out above I propose that the Court give the following answer to the question referred to it for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of 15 January 1982 in the action which the Zuid Nederlandse Aannemers Vereniging brought, by writ dated 12 May 1978, against Martin Peters Bauunternehmung GmbH:

1 Translated from the Italian.