Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The parties to the main proceedings are a French bank, Crédit lyonnais, Forbach branch, and Mr Rudolf Anterist, residing in Saarbrücken (Federal Republic of Germany), who had jointly and severally guaranteed to the bank the debts of Anterist & Schneider, a company whose registered office is situated at Stiring-Wendel (France). The printed contract of guarantee signed on 16 May contained the following clause:

2. The parties to the main proceedings, the Commission and two Member States, Italy and the United Kingdom, have submitted observations which are summarized below.

3. The United Kingdom also submitted that the third paragraph of Article 17 constituted an exception to the first paragraph of that article. Since most clauses conferring jurisdiction are identical to that at issue in this case, an affirmative answer to the question submitted would render wholly ineffective the rule in the first paragraph of Article 17 conferring exclusive jurisdiction.

4. The Italian Government considers that the provision in question is applicable if one party, for whatever reason, has compelled the other party to accept the jurisdiction of a particular court. However, it is not always clear from jurisdiction clauses whether they were agreed in the common interest of the parties — in which case the first paragraph of Article 17 applies — or in the interest of only one of the parties. Consequently, the national court must carefully ascertain the intention of the parties and determine whether the agreement was concluded in the interests of only one of the parties. The choice of the court of a party's domicile may suggest that the jurisdiction clause is in the interests of only one of the parties but it is important to determine whether it also gives an advantage to the other party, albeit a secondary one. If the clause is in the interests of only one of the parties, that party is at liberty to institute proceedings in any court which has jurisdiction under the Convention, if only to avoid objections concerning the validity of the clause.

5. The Commission's view, with which the representative of Crédit lyonnais, which had not submitted any written observations, agreed at the hearing, is as follows: the first paragraph of Article 17 does not lay down a rule but an exception to Articles 2, 5 and 6 of the Convention; the second and third paragraphs merely define its scope. The first paragraph of Article 17 should therefore be interpreted restrictively.

6. There is a paradox in these proceedings. Mr Anterist seeks the application of a jurisdiction clause which Crédit lyonnais is endeavouring to prevent on the ground that the clause was agreed for its benefit only. Plainly, the paradox is only apparent. I need not inquire into the real interests at stake in that academic discussion. That is a matter for the Bundesgerichtshof and I shall merely attempt to provide some considerations to enable the Court to answer the question referred to it.

7. The third paragraph of Article 17 cannot be interpreted in isolation. The parties to the main proceedings and the interveners have attempted to set that provision in the broader context of the Convention. I shall adopt the same approach.

9. The third paragraph of Article 17 remains to be interpreted.

1 Translated from the French.