The Gazette 1989

GAZETTE

SEPTEMBER

1989

jurisdiction of the Courts and

the aim of the Convention was

to reduce such uncertainties.

18. In contrast, such uncertainty

does not exist in relation to

contracts in general if the

obligation which is laid down in

the

con t r act

and

the

performance of which is sought

in the Court proceedings

is the

only obligation taken into

consideration. Normally the

place where the obligation is to

be performed constitutes the

closest connec t i ng factor

between the dispute and the

Court with jurisdiction; it is on

the ground of that factor that,

in ma t t ers relating to a

con t r ac t,

the

place

performance of the obligations

is the forum for disputes.

19. It is true that this rule does not

give a solution whenever an

action relates to

several

obligations arising under the

same contract and serving as

the basis for the proceedings

brought by the plaintiff. How-

ever, in these cases the Court

must determine its jurisdiction

according to the principle that

secondary obligations

follow

the main obligations:

that is to

say that the main obligation will

determine jurisdiction where

there are several obligations at

issue. That was not, however,

the position in the question

referred by the Landgericht.

The Court ruled as follows:

"For the purpose of deter-

mining the place of perform-

ance within the meaning of

article 5 (1) of the Convention

of 27 September 1968 on

Jurisdiction and the Enforce-

ment of Judgments in Civil

and Commercial Matters, the

obligation to be taken into

consideration in an action for

the recovery of fees, com-

menced by an architect com-

missioned to prepare plains

for the building of houses, is

the

contractual

obligation

actually forming the basis of

the legal proceedings".

With these arguments the case

has been settled in favour of those

who had held the opinion that the

test of the obligation characterising

the contract was only to be applied

in cases, ensuing from labour

contracts.

However, the Court adds some-

thing extra: it is now even so that

whenever there is question of

single obligations

ensuing from a

labour contract subject to a

procedure ex article 5.1., one should

no longer look at the obligation on

which the action is based when

localising the place of performance

(for example payment of salary) but

to the place where the labour is

performed.

For the

Court

men t i oned in paragraph 16

questions of law ensuing

from one

or more obligations, founded on

these contracts.

How to tackle article 5.17

From the jurisprudence men-

tioned above we can now distill the

following scheme in order to test a

case on the basis of article 5.1.

(whenever parties have not them-

selves agreed upon the place of

performance of the obligation in

question).

Identification.

Jurisdiction of the Court seised

is determined:

a. with labour contracts: by

establishing the place where

the labour is performed (pro-

ceed to 3).

b. with other contracts:

I. with single obligations: by

establishing the obligation

on which the action is

based (proceed to 2).

II. w i t h

plurality

obligations: by establishing

which obligation is the

"ma in obligation". The

place of performance of

this

obligation determines

jurisdiction.

Localisation.

Once the relevant obligation is

found, the Court seised must

then by means of its

own

private

international law determine the

place of performance.

Dacision

If the labour is not performed

within the jurisdiction of the

court seised or if the obligation

in question is not to be localised

there, the Court

denies

jurisdiction:

- i n default cases (article 20 of

the Brussels Convention);

- w h en the defendant entered

appearance solely to contest

the jurisdiction.

Those who have read this article

out of pure necessity may now

opt out. The part which is most

important for day-to-day practice

is now finished. However, for

those who, on the contrary, had

their appetites whetted, we

continue.

I I I . For tha connoisseurs

In what we have discussed above,

not all questions have been

answered, whereas new questions

have appeared.

Examples:

a. why does the Court, in

Ivenel,

refer to the Rome Convention of

1980 on the law applicable to

contractual obligations and

does not do so anymore in

Shenavai?

b. is the test as outlined in

Ivenel

and

Shenavai

exclusively applic-

able to labour contracts or

maybe also for other types of

contracts?

c. what exactly does the Court

mean with "main obligation"

(Shenavai,

paragraph 19) when

there is plurality of litigious

obligations?

a. The

Ivenel

judgment has met

with violent criticism. Authors

have reproached the Court that

it has incorrectly used the

Convention of Rome of 1980.

According to us the Convent-

ion has not been invoked by the

Court in order to identify and

localise the obligation in

question, but only in order to

give better motivation to the

i n t r oduc t i on of its self-

developed jurisdiction rule,

exclusively

for

labour

relationships.

In order to establish a special

rule to protect the weaker party

the Court not only finds general

principles within the context of

the Convention, but also among

the principles which form the

basis of the Convention of

Rome. Apparently the Court

wanted to use this kind of

argument in order to defend

itself beforehand against critics

that would point out to the

wordings of the " f ound i ng

fathers" of the Convention as

laid down in the Jenard report

who, at that time, did not (yet)

wanted to create a special

regime for employment relation-

ships.

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