Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. Article 2 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters refers to the domicile of the defendant as the general criterion in determining which court shall have jurisdiction. In addition to that rule — and not in derogation from it — Article 5 enables a plaintiff to bring proceedings before a different court, to be determined according to special criteria. The Court has held: This freedom of choice was introduced in view of the existence in certain ... cases of a particularly close relationship between a dispute and the court which may be most conveniently called upon to take cognizance of the matter (judgment of 6 October 1976, Case 12/76 Tessili v Dunlop [1976] ECR 1473, at paragraph 13 of the Decision). Thus, in resolving disputes in matters relating to a contract, a creditor may sue a debtor domiciled in another Contracting State in the courts for the place of performance of the obligation in question (Article 5 (1)).

2. Mr Shenavai, a German architect residing at Rockenhausen in the Federal Republic of Germany, brought proceedings before the Amtsgericht [Local Court] Rockenhausen against Mr Kreischer, a German national residing in the Netherlands, claiming payment on the fees due to him for the preparation of plans for the construction of three houses in the district of Rockenhausen. The Amtsgericht held that the place in which payment ought to be made was the client's domicile, and declared the application to be outside its territorial jurisdiction. On appeal, however, the Landgericht [Regional Court] Kaiserslautern deemed it necessary to stay the proceedings and to refer the following question to the Court: For the purposes of Article 5 (1) ..., is the place of performance, in the specific case of a claim for fees by an architect... to be determined by reference to the contractual obligation which forms the actual basis of the legal proceedings (in this case a debt payable under German law at the place where the defendant is domiciled), or by reference to the obligation typical of the contract and characterizing the contractual relationship as a whole (that is to say the place where the architect has his practice and/or the site of the planned building)?

3. The same problem assumes quite different dimensions, on the other hand, if the circumstances of the case are disregarded and account is taken — although the national court did not do so — of another, more recent judgment of the Court of 26 May 1982 (Case 133/81 Ivenel v Schwab [1982] ECR 1891). The plaintiff had put forward several claims based on the various obligations arising under a contract of employment, and the Court held that in such a case the provisions of the Convention must be interpreted in such a way that the national court is not compelled to find that it has jurisdiction to adjudicate upon certain claims but not on others and that therefore the obligation to be taken into account for the purposes of the application of Article 5 (1) ... is the obligation which characterizes the contract (paragraphs 18 and 20 of the Decision).

4. The United Kingdom maintains that, if the criterion of characteristic obligation became the general rule, the application of Article 5(1) would become more rational; it would serve to avoid the fragmentation of jurisdiction (that is, the possibility that several courts in different States might have jurisdiction over different claims arising from the same contractual relationship), and to prevent the plaintiff from determining the jurisdiction at will, according to the type of application which he decides to submit. The United Kingdom points out that that solution would, furthermore,

5. Of the standpoints summarized above I prefer the last. The United Kingdom's argument cannot withstand the objections raised by the Federal Republic of Germany and, as far as the reference to the Rome Convention of 19 June 1980 is concerned, is open to three simple counterarguments:

6. In view of all the foregoing considerations I propose that the Court should give the following answer to the question referred to it by the Landgericht Kaiserslautern in its order of 5 March 1985 in the proceedings brought by Mr Shenavai against Mr Kreischer:

1 Translated from the Italian.