Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. By judgment of 14 January 1988 the French Cour de cassation (Court of Cassation) has sought a ruling from the Court of Justice on the interpretation of Article 5(1) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

2. The Court's case-law concerning the interpretation of Article 5 (1) of the Brussels Convention is not very extensive. It has, however, given some judgments first on the more general question of determining the obligation to be taken into account for the purposes of Article 5 (1) and secondly on the more specific problem arising in that connection with regard to contracts of employment.

3. Let us begin by a systematic examination of the principles which have been laid down by the Court in the past and may come into play in the present case.

4. On applying the principles derived from the aforementioned cases to the questions referred to the Court by the Cour de cassation, it becomes clear that the solution will differ depending on which line of decisions is relied upon.

5. On the one hand, some governments have suggested the adoption in a case such as the present of a criterion according to which the court of the place where the employer has its registered office would have jurisdiction. That criterion was also envisaged by the Cour de cassation in its second question.

6. Before I consider which of the two alternatives is to be preferred or whether to propose a further solution, may I be permitted to make some observations on the argument put forward in the second question by the Cour de cassation and developed by some of the governments which submitted observations to the Court, namely that the Court should lay down the principle of the jurisdiction of the courts of the place where the employer has its registered office as such (or, in this case, as the place of recruitment).

7. I must say that such an innovative solution, although presented in an authoritative manner, leaves me so seriously perplexed, in the light of the aforementioned judgments of the Court, that it does not seem justified to recommend its adoption.

8. In other words, it is not excluded that provisions of other conventions or criteria for the interpretation of other conventions could provide logical arguments in favour of a given interpretation of the Brussels Convention.

9. Reference to the criterion of the place of the company's registered office is inconsistent with the following:

10. In conclusion, I believe that the argument that jurisdiction be conferred on the courts of the place where the company has its registered office as such, that is to say in absolute terms and ex hypothesi without reference to any link either with the place of performance or with the place of the other obligations inherent in an employment relationship, must be firmly rejected. To propose such a solution, which could, moreover, quite conceivably be extended from the case in point to all cases in general, would be to ask the Court not just to interpret Article 5 (1) of the Convention but rather to establish a new connective criterion. Whilst the solution of the characteristic obligation (Ivenel case) could still be ascribed to the efforts to interpret Article 5 (1) and in particular to the determination of the obligation to be taken into account, the hypothesis of the jurisdiction of the courts of the place where the company has its registered office as such would constitute the culmination not of a process of interpretation but rather one of real innovation: a new criterion would be established, one which was moreover deliberately excluded by the Contracting States. It hardly needs to be pointed out that it is for those States and not for the Court to make amendments to the Convention.

11. In essence, the dispute may be reduced to two alternatives: the national court may consider either that the payment of the compensation which the plaintiff is seeking represents the performance of the contractual obligation to which the proceedings relate or that payment of the compensation does not relate to a sole obligation but to various obligations resulting from the contract of employment.

12. In the second case, that is to say of a multiplicity of obligations, the position would be that underlying the Ivenel case and it would be difficult to apply the principles laid down in that judgment to this case in which the obligation which characterizes the labour relationship is located outside the Community.

13. In such a case it is possible either to disregard for the purposes of this hypothesis the `obligation which characterizes the contract' and to go back to the general scheme of Article 5(1) according to the wording of the provision itself (De Bloos and Shenavai cases) or to hold Article 5(1) to be wholly inapplicable and to have recourse, as is proposed by the Commission, to the normal rule of jurisdiction contained in Article 2, that is to say the place where the defendant is domiciled.

14. Without wishing to cast doubt on the Court's approach in its judgment in the Ivenel case, I do consider that the Court should verify whether recourse to the concept of the characteristic obligation, in so far as that is taken to be the work carried out, constitutes the hoped-for panacea in all cases where a multiplicity of obligations is at issue, particularly in cases where, for factual reasons — work performed outside the Member States — the connection between the place where the work is carried out and the court having jurisdiction is impracticable; otherwise further uncertainty will be created rather than removed (work carried out in more than one State).

15. On the basis of those considerations, I take the view that the existence of a factual element, namely that the work is carried out in one or more non-member countries, should not be capable of exercising such a significant influence as to exclude the normal operation of Article 5(1). In other words, it is difficult to understand why the mere fact that

1 Original language: Italian.

2 OJ L 266, 9 10.1080, p 1.

3 OJ L 319, 25.11 1988, p 9.

4 Such a conclusion is, in my view, in no way contradicted by lhe hope, which is, 10 say the least, surprising, expressed in the declaration by the representatives of the governments of the States signatories to the Lugano Convention which are members of the European Communities, which states that they consider as appropriate that the Court of Justice of the European Communities, when interpreting the Brussels Convention, pay due account to the rulings contained in the case-law of the Lugano Convention Whatever the scope of such a declaration it certainly cannot apply lo a case such as the present which falls within tne rules of the Brussels Convention whose substantive provisions are different from those of the Lugano Convention

5 On the subject of this paradox but in relation to other matters, it must be pointed out that the Jenard/Möller Report on the Lugano Convention justifies in this manner (paragraph 66) the provisions of Article 5(1) in relation to the performance of contracts of employment which some governments in this case would like to see extended to the solution of the present case: Le concept sous-jacent à cette disposition est la protection de l'employé, qui, du point de vue économique et social, est considéré comme l'élément le plus faible.