295 / 482
GAZETTE
SEPTEMBER
1989
Article 5.1 of the Brussels
Convention
The importance for day-to-day
practice of the "Convention on
Jurisdiction and the Enforcement
of Judgments in Civil and Com-
mercial matters with protocol,
Brussels, September 27 1968",
known as the Brussels Convention,
is ever increasing, especially since
the accession of the United
Kingdom on January 1st, 1987.
Also in that month the European
Court of Justice rendered a
judgment of great importance for
the legal practitioner, interested in
international litigation.
It must be known even to
beginners, that in principle a judg-
ment in civil and commercial
matters, given in an EEC-country
can easily be enforced in another,
as long as
jurisdiction
of the first
judge is based on the Convention.
Once the first judge has established
his competence on the basis of the
Convention, the judge of the
country where the judgment has to
be enforced is usually bound by it.
The most important rules con-
cerning jurisdiction are laid down in
section I, the General Provisions,
where in article 2 the forum rei is
to be found, and section 2, Special
Jurisdiction of which article 5
paragraph 1 wi ll be f ur t her
analysed hereafter. Finally, sections
3, 4 and 5 provide for some other
jurisdictional rules, which fall
outside the scope of this article.
Article 5.1
Before the coming into force of the
Accession Convention, meant to
regulate the accession of the
United Kingdom and Northern
Ireland, the Irish Republic and
Denmark, but which also contained
some material changes, there
existed a disparity between texts in
various languages.
The text goes 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 court for the place of
performance of the obligation
in Question.
In the French and Dutch text
words similar to the ones underlined
above were absent.
Moreover, jurisdiction established
by the performing of an obligation
was thus far unknown in several
convention states.
The article therefore gave rise to
considerable controversy.
It was to be expected that the
Court was soon to be seised in
By
John M. Bosnak*
order to deal with this article.
Obviously, it had become very
popular because it is an attractive
thought for a plaintiff to try and play
a home game by means of this
article. However, one encountered
at least two pitfalls:
What is meant w i th " t he
obligation" (A), and what is the
"place of performance" (B)? These
problems are sometimes referred to
as respectively the problem of
identification
and
localisation
of the
obligation as meant in the article.
Jurisprudence
On both problems the Court handed
down a judgment on October 6th
1976, the first judgments on the
basis of the Brussels Convention.
These judgments must have
become familiar even to beginners:
the twin judgments
De Bloos/
Bouyer
concerning pitall (A) and
Tessi/i/Duniop
on pitfall (B).
Here follows a brief summary of
the contents of the judgments,
a. "The obligation" is the con-
tractual obligation which is the
basis of the action, the
litigious
obligation therefore. As the
result of this clarification by the
Court the Dutch and the French
texts of the original Brussels
Convention were modified by
the Accession Convention.
Literally translated the Dutch
text now reads ". . . . of the
obligation,
on which the claim is
based, is performed or has to be
performed".
In French: "
It should be noted that a
litigious obligation is also the
obligation, which according to
the plaintiff has
not
been fulfilled,
b. "Place of performance": this
has to be established according
to the rules of Private
International Law as applied by
the court seised.
This implies that this judge
first has to find out which law
he would apply, should he have
jurisdiction and, subsequently,
whether according to this law
the place of performance of the
litigious obligation is within his
jurisdiction.
Example: should I claim, as a
seller, payment of the purchase
price, then payment is the
litigious obligation, the form of
the place where payment had to
be effected is competent ex
article 5.1. Should I, as a
purchaser, claim annullment of
the purchase agreement, on the
basis of breach of contract, then
delivery is the litigious obligation
and the forum, where such
delivery had to take place or has
taken place has jurisdiction.
Plurality of obligations
At first glance, the problems
seemed to be solved by these
decisions. However, there was
some reason to doubt whether the
front was to remain silent.
In
re De Bloos,
as it happened,
the Court had also held:
"that in
case of claims for payment of
additional compensation the national
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