Custom Made Commercial Ltd v Stawa Metallbau GmbH.

• Jurisdiction: European Union
• Celex Number: 61992CC0288
• ECLI: ECLI:EU:C:1994:86
• Date: 08 March 1994
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-288/92

61992C0288

Opinion of Mr Advocate General Lenz delivered on 8 March 1994. - Custom Made Commercial Ltd v Stawa Metallbau GmbH. - Reference for a preliminary ruling: Bundesgerichtshof - Germany. - Brussels Convention - Place of performance of an obligation - Uniform law of sale. - Case C-288/92.

European Court reports 1994 Page I-02913
Swedish special edition Page I-00261
Finnish special edition Page I-00301

Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A ° Introduction

1. In its request for a preliminary ruling, the Bundesgerichtshof (Federal Court of Justice) raises questions concerning the interpretation of two important provisions of the Brussels Convention, namely Article 5(1) on jurisdiction in respect of the place of performance and (possibly) Article 17 on jurisdiction agreements. According to the particulars given by the national court, those two provisions are applicable either in the 1978 version or in the (identical) 1982 version.

2. The questions arose in proceedings in which Stawa Metallbau GmbH seeks in the court for the place at which its registered office is located, Bielefeld, from a party to a contract with it, Custom Made Commercial Ltd, (part) payment for doors and windows of its manufacture.

3. Those articles were intended for a building complex in London. The price agreed was denominated in sterling. The contract on which the claim is based was the first one concluded between the parties. It was concluded orally in London on 6 May 1988 after negotiations conducted in English.

4. The plaintiff confirmed the conclusion of the contract by a letter of 9 May 1988 written in English. That letter contains the following passage:

"We refer to our meeting on May 6th and confirm your order for the manufacturing of windows and doors for the Project 'Cranbrook Estate' , subject to our terms of sale and supply.

...".

5. That letter was accompanied for the first time by the plaintiff' s general business conditions written in German, Paragraph 8 of which reads as follows:

"Paragraph 8: Jurisdiction

Where the purchaser is a registered trader, a legal person governed by public law or a special entity governed by public law, the place of performance and jurisdiction for all disputes between the parties which may arise out of the contractual relationship shall be Bielefeld."

6. The defendant did not dispute those business conditions.

7. The Bundesgerichtshof held that the contract in question was governed by the Uniform Law on the International Sale of Goods (the "Uniform Law") forming the annex to the Hague Convention of 1 July 1964. (1) According to the first part of Article 59(1) of the Uniform Law, which is applicable in this case, the place of performance of the obligation to pay the purchase price is the seller' s place of business or, if he does not have a place of business, his habitual residence.

8. As regards the procedure before the national courts, it should be observed that the plaintiff first obtained default judgment before the Landgericht (Regional Court) Bielefeld under which the defendant was ordered to pay it the sum at issue. The defendant applied to set aside that judgment, upon which the Landgericht, by interlocutory judgment, held the claim to be admissible. The Oberlandesgericht (Higher Regional Court) Hamm dismissed the defendant' s appeal against that judgment. It based the jurisdiction of the German courts on Article 5(1) of the Brussels Convention, since it held that, under Article 59 of the Uniform Law, the plaintiff' s head office was the place of performance within the meaning of that provision.

9. In an appeal on a point of law against the judgment of the Oberlandesgericht Hamm, the Bundesgerichtshof requested the Court of Justice for a preliminary ruling on the following questions:

"1 (a) Is the place of performance under Article 5(1) of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters to be determined pursuant to the substantive law applicable to the obligation in issue under the conflicts rules of the court hearing the case where the case concerns a claim for payment of the price brought by the supplier against the customer under a contract for manufacture and supply, according to the conflicts rules of the court hearing the case that contract is governed by uniform sales law and under that law the place of performance of the obligation to pay the price is the place of establishment of the plaintiff supplier?

(b) In the event that the Court of Justice replies in the negative to question 1(a):

How is the place of performance under Article 5(1) of the Convention to be determined in such a case?

2. In the event that according to the answers to questions 1(a) and (b) the German courts cannot derive jurisdiction from Article 5(1) of the Convention:

(a) Can a jurisdiction agreement validly be made under the third hypotheses in the second sentence of Article 17, first paragraph, of the Convention (in the 1978 version) where after the oral conclusion of a contract the supplier confirms the conclusion of the contract in writing and that written confirmation is accompanied for the first time by general business conditions containing a jurisdiction clause, the customer does not dispute the jurisdiction clause, there is no trade practice at the place where the customer is established to the effect that the absence of response to such a document is to be regarded as assent to the jurisdiction clause, the customer is not aware of any such trade practice and it is the first time that the parties have done business with each other?

(b) In the event that the Court of Justice replies in the affirmative to question 2(a):

Is it also true where the general business conditions containing the jurisdiction clause are in a language which the customer does not understand and is not that in which the contract was negotiated and concluded and where the written confirmation of the contract, written in the language in which the contract was negotiated and concluded, refers generally to the attached general business conditions but not specifically to the jurisdiction clause?

3. In the event that the Court of Justice replies in the affirmative to questions 2(a) and (b):

In relation to a jurisdiction clause contained in general business conditions which meets the requirements laid down in Article 17 of the Convention for a valid jurisdiction agreement, does Article 17 preclude further examination, under the national substantive law which is applicable in accordance with the conflicts rules of the court hearing the case, of the question whether the jurisdiction clause is validly incorporated in the contract?"

B ° Appraisal

The national court' s first question

10. I ° Article 5(1) of the Brussels Convention, which has to be considered as a result of the national court' s first question, reads as follows:

"A person domiciled in a Contracting State may, in another Contracting State, be sued:

1. in matters relating to a contract, in the courts for the place of performance of the obligation in question ...".

11. As can clearly be seen from the national court' s order, it wishes to clarify the concept contained in that provision of "the place of performance of the obligation in question". More precisely, it seeks to establish whether the meaning of that concept ° "the place of performance" ° should be determined, in cases such as this, "pursuant to the substantive law applicable to the obligation in issue under the conflicts rules of the court hearing the case". If that question is answered in the negative, the national court wishes to know in what (other) way the place of performance should be determined.

12. II ° In my view, in order to resolve those problems it is important to take a more detailed look at their context, namely Article 5(1) of the Convention ° the source of the concept at issue ° and its place in the Brussels Convention and the relevant case-law of the Court.

13. (1) As far as the aim of Article 5(1) is concerned, it appears from the Jenard Report (2) that the adoption of special rules of jurisdiction in the Convention was justified

"by the fact that there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it".

14. With regard specifically to Article 5(1), the Jenard Report lists a number of examples showing the interest in defining the jurisdiction of the court for the place of performance in this way:

"The court for the place of performance of the obligation will be useful in proceedings for the recovery of fees: the creditor will have a choice between the courts of the State where the defendant is domiciled and the courts of another State within whose jurisdiction the services were provided, particularly where, according to the appropriate law, the obligation to pay must be performed where the services were provided. This forum can also be used where expert evidence or inquiries are required." (3)

15. That interpretation of the aim of Article 5(1) has been expressly adopted by the Court. In the judgment in Tessili v Dunlop, (4) it is stated as follows with regard to the freedom of choice between courts having special jurisdiction under Article 5:

"This freedom of choice was introduced in view of the existence in certain well-defined 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." (5)

16. In other words, that is to say, those of Advocate General Mancini the court of the place of performance of the obligation in question "has by virtue of its physical proximity to the relationship at issue the best chances of determining the nature of that relationship in the fullest possible knowledge of the facts of the case". (6)

17. But in some instances the aim of Article 5(1) is interpreted...