298 / 482
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
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
the basis for the legal
proceedings.
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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