Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Pursuant to Article 3 (1) of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Official Journal 1978, L 304, p. 36) (hereinafter referred to as the Convention), the Belgian Court of Cassation has asked the Court of Justice for an interpretation of Article 17 of the Convention in connection with a dispute concerning the enforcement of an agreement containing a clause conferring jurisdiction on a court of a State of which one of the parties is a national.

2. Two undertakings, Iveco Fiat SpA (Fiat), having its registered office in Turin (Italy) and Van Hooi NV (Van Hool), having its registered office in Konings-hooikt-Lier (Belgium), entered into a one-year agreement on 28 December 1956 with effect from 1 January 1957 whereby Fiat granted Van Hool exclusive rights within the territory of the Benelux States to assemble or sell certain Fiat motor vehicles or spare parts.

3. The first paragraph of Article 17 of the Convention provides that if the parties... have ... agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction.

4. In the decisions to which I have referred, the Court laid down on several occasions the conditions in which jurisdiction clauses exhibiting certain characteristics must be regarded as valid for the purposes of Article 17 of the Convention.

5. It is indisputable that, in the case under consideration, the parties inserted in the original written agreement between them — without there being any risk of its passing unnoticed — a jurisdiction clause which clearly satisfied the formal requirements laid down in Article 17 of the Convention.

6. It is not for the Court of Justice to take the place of the national court by fixing on the basis of facts concerning the conduct of the parties which it is for the national court to establish, the nature of the legal uncertainty between the last time the original agreement was renewed in writing and the termination of the business relations which the parties continued to maintain for a number of years thereafter.

7. Before I reach my conclusion, I must rapidly recapitulate the essential facts of the case sub judice, as reflected in the question submitted by the Belgian Court of Cassation.

8. That statement of the essential facts which are set out in the documents before the Court (and in particular in the judgment of the Court of Cassation) does not, as I said earlier, dispel certain doubts or ambiguities concerning the facts of the case. Allow me, however, in the light of the considerations which I have set forth, to consider two possibilities and to draw symmetrical conclusions from them.

9. In conclusion, therefore, I suggest that the Court of Justice answer the question submitted to it for a preliminary ruling by the Belgian Court of Cassation as follows :

1 Translated from the Portuguese.

2 And Article 14 of the agreement concluded with Catrabel in 1961.

3 Case 24/76 Estalis Salotti v RÜWA [1976] ECR 1831; Case 25/76 Segoura v Bonakdarian [1976] ECR 1851; Case 784/79 Porta Leasing v Prestige International [1980] ECR 1517; Case 201/82 Gerling v Amministrazione del Tesoro dello Stato [1983] ECR 2503; Case 71/83 Tilly Russ v Afoni [1984] ECR 2417; judgment of 11 July 1985 in Case 221/84 Berghoefer v ASA [1985] ECR 2699.

4 Case 201/82 Gerling v Amministrazione del Tesoro [1983] ECR 2503 ac p. 2515.

5 Emphasis added.