Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières Rhénanes SARL.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Kakouris
• ECLI: ECLI:EU:C:1996:361
• Docket Number: C-106/95
• Date: 26 September 1996
• Procedure Type: Reference for a preliminary ruling

Important legal notice

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61995C0106

Opinion of Mr Advocate General Tesauro delivered on 26 September 1996. - Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières Rhénanes SARL. - Brussels Convention - Agreement on the place of performance of the obligation in question - Agreement conferring jurisdiction. - Demande de décision préjudicielle: Bundesgerichtshof - Allemagne. - Case C-106/95.

European Court reports 1997 Page I-00911

Opinion of the Advocate-General

1 The questions referred to the Court for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice) are concerned with the interpretation of Articles 5(1) and 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (`the Convention'), as amended by the 1978 Accession Convention.

More specifically, the national court wishes to establish whether an `abstract' agreement on the place of performance - that is to say, an agreement concluded, not to establish the place at which the person liable actually has to perform his obligations, but simply and exclusively to designate the courts having jurisdiction - is valid under Article 5(1) of the Convention and hence whether the courts for the place of performance thus identified have jurisdiction to rule on disputes relating to the obligation in question. If that question is answered in the negative, the Court is asked whether in this case the `abstract' agreement fulfils the requirements of Article 17 of the Convention, that is to say, whether a jurisdiction clause has been validly concluded.

2 I would first hark back to the origins of these proceedings. By a time charterparty concluded orally, the inland waterway company Mainschiffahrts-Genossenschaft e.G. (`MSG'), having its seat in Germany (Würzburg), made an inland waterway vessel available to the undertaking Les Gravières Rhénanes SARL (`the defendant'), having its registered office in France. The vessel was used on the Rhine between 1 June 1989 and 10 February 1991 to transport gravel from the place of loading to the place of unloading, both of which were located in France. (1) During unloading operations, the vessel was damaged by the unloading equipment used by the defendant on its responsibility. The damage, which was made good after the contract had expired, was assessed at different levels by the respective assessors appointed by the parties.

What is at issue in these proceedings is the sum of DM 197 284, namely the difference between the amount paid by the defendant's insurers and the amount claimed by MSG. With a view to obtaining that sum, MSG brought an action for damages for breach of the charterparty before the Schiffahrtsgericht (Maritime Court) Würzburg, the competent inland waterways court.

3 MSG claims that the German courts have jurisdiction on the ground that the defendant did not express any objections to a commercial letter of confirmation containing a pre-printed reference to Würzburg - the place at which MSG itself had its principal place of business - as the place of performance and the forum having jurisdiction or to the invoices, including a similar reference, issued by it, which the defendant paid without challenging them in any way.

By interlocutory judgment, the Schiffahrtsgericht declared the application admissible. On appeal, the Oberlandesgericht (Higher Regional Court) Nürnberg upheld the defendant's claim that it could be sued only in the French courts, and dismissed the application as inadmissible for want of jurisdiction.

4 The plaintiff appealed on a point of law against that judgment to the Bundesgerichtshof, in which it claims that the judgment of the court of first instance should be upheld. In the order for reference, the Bundesgerichtshof found, inter alia, that `the contractual obligations under the time charterparty which was concluded were to be performed in France; this is where the main element of the performance of the contract took place: it was not only there that the defendant, as the party determining the use of the vessel, had its seat, but it was there that the vessel was almost invariably loaded and always unloaded, with the result that it was not necessary to have an agreement deviating from Article 5 of the Brussels Convention in order to safeguard the - by all means - legitimate interest of the plaintiff in having a single place of performance'.

After finding that all the - principal and ancillary - contractual obligations could be performed only in France, the Bundesgerichtshof therefore concluded that the determination of the place of performance was fictitious and that `the reference in [the plaintiff's] general conditions of business to Würzburg as the place of performance was intended solely to enable legal disputes to be brought before the courts of the place at which its principal place of business was located'. The decision had therefore been taken solely in order to give jurisdiction to the plaintiff's courts and hence to avoid complying with the formal requirements imposed by Article 17 of the Brussels Convention. Nevertheless, as the Bundesgerichtshof points out, under German law `an effective agreement on the place of performance was made'.

5 In view of those circumstances, the Bundesgerichtshof deemed it necessary to refer the following questions to the Court in order to resolve the dispute pending before it:

`1. Is an oral agreement on the place of performance (Brussels Convention, Article 5) to be recognized even if it is not intended to fix the place at which the person liable has to perform the obligations incumbent on him, but is intended solely to establish - informally - that the courts for a particular place are to have jurisdiction (a so-called "abstract" agreement on the place of performance)?

2. In the event that the Court of Justice should answer question 1 in the negative:

(a) Can an agreement conferring jurisdiction in international trade or commerce in accordance with the third hypothesis mentioned in the second sentence of the first paragraph of Article 17 of the 1978 version of the Brussels Convention also be concluded by one party's not contradicting a commercial letter of confirmation containing a pre-printed reference to the courts of the consignors' place of business having sole jurisdiction or must there have been in every case prior consensus with regard to the content of the letter of confirmation?

(b) Is it sufficient in order for there to be an agreement conferring jurisdiction within the meaning of the aforesaid provision if the invoices sent by one party all contain a reference to the courts of the carrier's place of business having sole jurisdiction and to the conditions of the bill of lading used by the carrier which also stipulate the courts of the same place as having jurisdiction, and the other party invariably paid the invoices without objecting, or is prior consensus also required in this respect?'

6 What therefore has to be established in the first place is whether an abstract agreement on the place of performance - which simply conceals a jurisdiction clause, which, as such, would be subject to formal requirements - is to be considered valid under Article 5(1). If that question is answered in the negative, it has to be determined whether in the case in point the agreement on the place of performance may be regarded as a validly concluded jurisdiction clause under Article 17.

The Commission has suggested reversing the order of the preliminary questions on the ground that, if only on logical grounds, it should be determined whether there is a valid jurisdiction clause within the meaning of Article 17 before any finding is made as to whether there is a valid agreement on the place of performance within the meaning of Article 5(1). This is precisely because Article 17 provides for exclusive jurisdiction, which therefore prevails over every other jurisdiction, even special jurisdiction under Article 5(1). In addition - the Commission further maintains - if there were to be a validly concluded jurisdiction clause this would mean that the Court would have no need to answer a question on the validity of an abstract agreement on the place of performance which is undoubtedly more complex and thornier (sic!).

7 For my part, I consider that the order of the questions as they have been put by the national court should be respected. Over and above the different (or allegedly different) degree of difficulty of the two questions - a criterion which, to my mind, cannot or should not influence the Court's decision - I consider that the Bundesgerichtshof's decision to place the question on the interpretation of Article 5(1) first is anything but a matter of chance. Whilst an affirmative answer to that question would mean that the German courts certainly have jurisdiction, it is possible that the Court's answer with regard to Article 17 may require further findings of fact on the part of the national court in order to establish which courts have jurisdiction, which it is not competent to the Bundesgerichtshof to make. Consequently, should the Court decide to answer the second question only, this might make a second reference to the Court necessary with regard to the same dispute.

In addition, there is the fact that the question of abstract clauses on the place of performance certainly should not be underestimated and, as will be seen, has been tackled and resolved by the various national courts in different ways. In those circumstances, clarification from the Court seems necessary. I shall therefore consider the questions in the order in which they have been put.

The first question

8 Article 5(1) of the Convention, which is the subject of the national court's first question, provides that `a person domiciled in a Contracting State may, in another Contracting State, be sued: in matters relating to a...