Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. These proceedings concern certain questions referred to the Court by the Oberlandesgericht (Higher Regional Court), Koblenz, for a preliminary ruling on the interpretation of Article 17 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the 1978 Accession Convention.

2. I shall briefly recall the facts underlying these proceedings, referring for a more detailed account to the Report for the Hearing.

3. The main point to be decided is therefore whether a jurisdiction clause contained in the statutes of a company limited by shares constitutes an agreement conferring jurisdiction within the meaning of Article 17, thus complying with the formal requirements laid down in that article.

4. Indeed a comparison of the various legal orders of the Member States demonstrates, on the one hand, that the nature of corporate relationships and in particular — of relevance here — the relationships between a company and its shareholders, are not treated uniformly, although at the same time the differences do not entail substantially different consequences.

5. That is specifically confirmed in the Peters judgment in which the Court held that an action for the recovery of monies brought by an association having legal personality against one of its members was a matter relating to a contract. That judgment has a twofold significance: on the one hand, the Court therein stated that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, the concept of matters relating to a contract (referred to in Article 5 of the Convention), cannot be interpreted simply as referring to the national law of one or other of the States concerned; it then went on to state that membership of an association creates between the members close links of the same kind as those which are created between the parties to a contract.

6. Once it is established on the basis of the foregoing that a clause conferring jurisdiction contained in the statutes of a company falls within the concept of an agreement between the company and its shareholders, it is necessary to ascertain whether that clause complies with the conditions laid down in Article 17 of the Convention.

7. Having said that, it is also true that the Court has always stressed that the reality of the consensus between the parties with regard to the clause in question must be proved, as must the fact that they agreed to it knowingly. The purpose is always to avoid a jurisdiction clause being inserted surreptitiously, that is to say in a situation in which one of the parties is not in fact aware of it, whether under the reasonable care doctrine or under the presumption of awareness of usages, as referred to in the Salotti and Tilly Russ judgments cited above.

8. Perplexity and disagreement have arisen on the question whether the clause assigning jurisdiction is to be deemed valid and enforceable also as against members who (a) voted against the insertion of the clause into the statutes; (b) have subsequently become members of the company, perhaps by acquiring shares by telephonic means or, according to the very infelicitous example given at the hearing, by finding the security by chance or even by stealing it, or by subscribing for new shares on the occasion of an increase of capital. Essentially, in both situations mentioned the conditions laid down in Article 17 are not satisfied: in the former situation there is no consensus since there was in fact disagreement; in the latter there is no proof of actual consent to the clause.

9. I am, moreover, persuaded that the solution of the problem calls for a wider perspective which does justice both to the specific nature of the jurisdiction clause contained in the statutes of a company and to the relevance in the legal as opposed to the economic life of the company of the collective will as against the consent of an individual. Were one to fail to appreciate that the problem raised by the national court does not call for a solution dependent on the sole consent of the individual and on traditional contractual aspects, one would not go very far; perhaps one would manage to resolve the present case, somehow: it would, however, be on a narrow ground and unsatisfactory.

10. In the case of companies, there is undeniably underpinning the constitution of the company (whatever may be the legal description given to the corporate contract) a convergence of economic interests directed at the pursuit of common purposes. There is in the deed incorporating the company a community of interests whereby all the Contracting Parties seek through the pursuit of a common (economic) activity, profits and advantages. That is so, regardless of the individual reasons prompting each member to pursue the common interests, reasons which obviously may vary, but not in any significant way.

11. Corporate logic and its underlying principles, as I have described them, clearly demonstrate that the consent of the parties to the statutes, thus to the rules governing the functioning of the company, constitute the expression of the collective will of the shareholders namely the corporate will. Similarly, it is the corporate will, and the acts giving expression to it, which regulate the obligations as between members and company, and, again, it is the corporate will in which the contractual origins of the company are subsumed. So much is that so that it is inconceivable to seek an agreement between the parties in the strict sense of the term, as an exclusive source of the obligations in question.

12. I do not think it appropriate to go into the preoccupations concerning any perverse effects which may arise from the solution which I have suggested, such as the risk of frivolous choices of courts or the choice of a forum non conveniens (the courts of Heidelberg for a company with its principal office and main establishment in Naples).

13. As regards, then, the question whether the clause conferring jurisdiction satisfies the requirement that the dispute must arise in connexion with a particular legal relationship within the meaning of Article 17 (question 2(b], I would first of all recall that the purpose of that provision is to prevent the party in a stronger bargaining position from imposing on the other party the jurisdiction of any other court. In view of that fact, the provision in question is observed if Article 4 of the statutes, whose interpretation is in the end a matter for the national court, is interpreted as referring to all disputes between the shareholder and the company arising out of the reciprocal corporate obligations.

14. In the light of the foregoing observations, I conclude that the Court should reply as follows to the questions raised by the Oberlandesgericht, Koblenz:

1 Original language: Italian.

2 See judgment in Case 12/76 Tessili v Dunlop ECR 1485, paragraph 11.

3 See amongst other authorities judgments in Case 29/76 Eurocontrol v Lufttransportunternehmen GmbH & Co Kg [1976] ECR 1451; Case 21/76 Mines de Potasse d'Alsace v Fondation Reinwater [1976] ECR 1735; Case 139/80 Trost v Blanckaert & Willems PVBA [1981] ECR 819; Case 34/82 Martin Peters Bauunternehmen GmbH v Zuid Nederlandse Vereniging [1983] ECR 987.

4 Cited above at footnote 2.

5 Ibid, at paragraph 9.

6 Ibid, at paragraph 13.

7 Judgments in Case 24/76 Estasis Salotti v Ruwa [1976] ECR 1831, at paragraph 7, and Case 25/76 Segoura v Bonakdarian [1976] ECR 1851, at paragraph 6.

8 Ibid, at paragraphs 7 and 6 respectively.

9 Judgment in Case 201/82 Gerling Konzern Speziale Kreditversicherungs AG v Amministrazione del Tesoro dello Stato [1983] ECR 2503.

10 Judgment in Case 313/85 Iveco Fiat SpA v Van Hool NV [1986] ECR 3337 and the judgment in Case 221/84 Berghoefer Gmbh and Co KG v ASA [1985] ECR 2699.

11 Judgment in Case 24/76, cited above; judgment in Case 71/83 Tilly Russ [1984] ECR 2417, and the judgment in Case 313/85, cited above.

12 In addition to this part of the present proceedings, the argument refuted here was put forward by Thode, actually in a note on the order for reference before the Court (in Wirtschafts- und Bankrecht VH B.I., 1989, p. 1425). Taking the opposite view, that is to say tending essentially in the direction I have suggested, ana again commenting on this same order for reference, are Geimer in Entscheidung zum Wirtschaftsrecht, 1989, p. 855), who expressed the same opinion before the case before the Court arose (Geimer-Schütze, Internationale Urteilsanerkennung, Vol. I, Munich 1983, p. 696), and others (Kropholler, Europäisches Zivilprozeßrecht, Heidelberg 1987, p. 152). In favour of the validity of an arbitration clause in statutes, in the light of a provision on formal requirements for oppressive clauses analogous to Article 17, see Italian Court of Cassation, Judgment of 3 February 1968, No 353 in Giustizia Civile, 1968, p. 179.

13 See to that effect Geimer-Schütze, Internationale Urteilsanerkennung, loc. cit., p. 940.

14 Ibid, at paragraphs 24 and 25.

15 In Belgium (exclusive) jurisdiction is conferred on the court competent for the principal office or the main establishment (Article 628 of the Judicial Code); in Denmark Article 238 of the Code of Civil Procedure provides for the concurrent jurisdiction of the court of the place in which the registered office is situated, as does Germany in Article 22 of the Zivilprozessordnung; and the same may be said of Luxembourg (Article 36 of the Code of Civil Procedure) and of the Netherlands (Article 126 of the Code of Civil Procedure); in Italy the general jurisdiction rule applies to companies (Article 19 of the Code of Civil Procedure) and to cases between shareholders (Article 23).

16 See to this effect the interesting remarks made by Carbone) la disciplina communitaria della proroga della giurisdizione in materia civile e commerciale, in Diritto del Commercio Intemazionale, 1989, p. 351 et seq., particularly at pp. 356 et seq.; and also, by the same author, Area dell'economie communitaria e clausole di deroga alla giurisdizione contenute in polizze di carico, in Diritto marittimo, 1977, p. 169 et seq., in particular p. 181.

17 On this point see Kohler, Rigueur et souplesse en droit international privé: Les formes possibles pour une convention de juridiction dans le commerce international par l'article 17 de la Convention de Bruxelles dans sa nouvelle redaction, in Diritto del Commercio Internazionale, 1990, pp. 611 et seq. The author rightly emphasizes that the relaxation of the formal requirements effected by the new wording of Article 17 entailing a necessary relaxation of the same conditions with regard to the establishment of consensus, can be justified only by the possibility of substantive review of clauses conferring jurisdiction. Whilst stating that national law, particularly the common law systems, have always permitted their courts to perform such a review, not only in order to protect parties in a weak bargaining position, but also in areas in which professionals carry on their business on the basis of established conditions', the author is nevertheless of the opinion that such review is not possible on the basis of the current wording of Article 17, and therefore stands in need of amendment.