The Gazette 1989

GAZETTE

SEPTEMBER

1989

performance of the contractual obligation, which forms the actual basis of the legal pro- ceedings*, in this case payment of fees. Under these circum- stances the Landgericht con- sidered it necessary to refer the following question to the Court of Justice: "For the purposes of article 5 (1) of the Convention of 27 September 1968 on Juris- diction and the Enforcement of Judgments in Civil and Com- mercial Matters, is the place of performance, in the specific case of a claim for fees by an architect engaged solely in planning work, to be deter- mined by reference to the con- tractual obligation which forms the actual basis of the legal proceedings" (in this case a debt payable at the place where the defendant is domiciled), or by reference to the performance typical of the contract and characterising the contractual relationship as a whole* (that is to say the place where the architect has his practice and/or the site of the planned building)?" Subsequently the Court gives a summary of the jurisprudence as laid down in Tessili and De B/oos judgments. The principle of pro- mo t i ng a sw i ft procedure is specifically repeated here. Then the Court continues: (a) 10 + 11 + 12 10. However, the general rule thus established, undergoes certain exceptions because of the fact that contracts may cover relationships of very different kinds, in view of their social implications as well as of the nature of the contractual per- formances. The Convention takes full account of this

the basis for the legal proceedings.

diversity by establishing certain special rules applicable to specific contractual relation- ships. For this reason, for in- stance, an exclusive jurisdiction has been created in matters of tenancies of immovable properties. 11. Based on these considerations, the Court has held in its ruling of 25.5.1982 (Ivenel/Schwab, 133/81) that in case of a claim founded on different obligations ensuing from a single repre- sentation contract (which was considered to be a labour con- tract according to the law of the court seised) the relevant obligation as meant in article 5 (1) of the Convention is the one characterising the contract, which normally is the perform- ance of the labour. 12. It is therefore necessary to regard the question put before the Court as seeking to ascer- tain in particular whether, in proceedings for the recovery of fees due to an architect, the general rule laid down in De BloosZ-Bouyer, according to which the obligation to which reference should be made is the obligation forming the basis of the plaintiff's action, must be applied or whether, on the contrary, such a case has special characteristics analo- gous to those at issue in the Court's judgment in /venel/ Schwab. The submissions presented to the Court concerned not only the question whether the nature of the contract in question must be taken into account when determining the obligations to which reference should be made, but also to the problem of the existence in the same case of several obligations serving as

Then the Court continues: (a) 16 + 17 + 18 + 19 16. The Court observed in the first place that contracts on employ- ment and other contracts relating to subordinate work have certain special character- istics in comparison with other contracts even if the latter relate to the provision of services, since contracts of employment create a long-term relationship whereby the employee is placed in the framework of the par- ticular business organisation of the undertaking or the employer and since contracts of employ- ment are located at the place where the business is carried out and that place determines the application of mandatory provisions of law and collective agreements. Because of these special circumstances the Court of the place, where the obliga- tion, which is characteristic for such con t rac ts is to be performed, is best qualified to decide upon questions of law, ensuing from one or more obligations, founded on these contracts. 17. In the absence of such special characteristics, however, it is neither necessary nor pre- scribed, to identify the obliga- tion characterising the contract and then to centralise juris- diction at the place of its performance in proceedings concerning all contractual obligations. The variety and the multiplicity of contracts in general is such that in those cases where the special characteristics are absent that criterion could create uncer- tainty w i th regard to the

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