61979J0784

CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS - PROROGATION OF JURISDICTION - AGREEMENTS CONFERRING JURISDICTION - VALIDITY WITH RESPECT TO A PERSON DOMICILED IN LUXEMBOURG - SPECIAL REQUIREMENTS AS TO FORM - EXPRESS AND SPECIFIC AGREEMENT - CONCEPT

( CONVENTION OF 27 SEPTEMBER 1968 , PROTOCOL , ART . I , SECOND PARAGRAPH )

THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS MUST BE INTERPRETED AS MEANING THAT A CLAUSE CONFERRING JURISDICTION WITHIN THE MEANING OF THAT PROVISION MAY NOT BE CONSIDERED TO HAVE BEEN EXPRESSLY AND SPECIFICALLY AGREED TO BY A PERSON DOMICILED IN LUXEMBOURG UNLESS THAT CLAUSE , BESIDES BEING IN WRITING AS REQUIRED BY ARTICLE 17 OF THE CONVENTION , IS MENTIONED IN A PROVISION SPECIALLY AND EXCLUSIVELY MEANT FOR THIS PURPOSE AND WHICH HAS BEEN SPECIFICALLY SIGNED BY THE PARTY DOMICILED IN LUXEMBOURG ; IN THIS RESPECT THE SIGNING OF THE CONTRACT AS A WHOLE DOES NOT IN ITSELF SUFFICE . IT IS NOT HOWEVER NECESSARY FOR THAT CLAUSE TO BE MENTIONED IN A DOCUMENT SEPARATE FROM THE ONE WHICH CONSTITUTES THE WRITTEN INSTRUMENT OF THE CONTRACT .

IN CASE 784/79

REFERENCE TO THE COURT UNDER THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 IN JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS , BY THE OBERLANDESGERICHT ( HIGHER REGIONAL COURT ) KOBLENZ ( SECOND CIVIL SENATE ), FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PORTA-LEASING GMBH , TRIER ,

AND

PRESTIGE INTERNATIONAL S.A ., SENNINGERBERG , LUXEMBOURG ,

ON THE INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ,

1 BY AN ORDER OF 12 OCTOBER 1979 WHICH WAS RECEIVED AT THE COURT ON 23 OCTOBER 1979 THE OBERLANDESGERICHT ( HIGHER REGIONAL COURT ) KOBLENZ ASKED THE COURT UNDER ARTICLE I OF THE PROTOCOL ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( OFFICIAL JOURNAL 1975 , L 204 , P . 28 ) FOR A PRELIMINARY RULING ON THE INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE ABOVE-MENTIONED CONVENTION OF 27 SEPTEMBER 1968 .

2 THIS QUESTION ARISES OUT OF A DISPUTE BETWEEN A LEASING UNDERTAKING , THE PLAINTIFF IN THE MAIN ACTION , WHOSE REGISTERED OFFICE IS AT TRIER , FEDERAL REPUBLIC OF GERMANY , AND ONE OF ITS CUSTOMERS , THE DEFENDANT IN THE MAIN ACTION , WHOSE REGISTERED OFFICE IS IN THE GRAND DUCHY OF LUXEMBOURG . THE CONTRACTS MADE BETWEEN THE PARTIES WERE DRAWN UP IN ADVANCE AS STANDARD PRINTED CONTRACTS AND CONTAIN A CLAUSE CONFERRING JURISDICTION ON THE COURTS OF THE PLACE WHERE THE PLAINTIFF IN THE MAIN ACTION HAS ITS SEAT . WHEN SUED BY THE PLAINTIFF IN THE LANDGERICHT ( REGIONAL COURT ) TRIER THE LUXEMBOURG FIRM DISPUTED THE JURISDICTION ON GROUNDS OF LOCALITY OF THE GERMAN COURT BY RELYING ON THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE CONVENTION OF 27 SEPTEMBER 1968 .

3 THE SECOND PARAGRAPH OF ARTICLE I PROVIDES THAT : ' ' AN AGREEMENT CONFERRING JURISDICTION WITHIN THE MEANING OF ARTICLE 17 ( OF THE CONVENTION ) SHALL BE VALID WITH RESPECT TO A PERSON DOMICILED IN LUXEMBOURG ONLY IF THAT PERSON HAS EXPRESSLY AND SPECIFICALLY SO AGREED ' ' .

4 IN ORDER TO ENABLE IT TO RESOLVE THE PROBLEM OF JURISDICTION WHICH THUS AROSE THE OBERLANDESGERICHT KOBLENZ , HAVING BEEN ASKED TO RULE ON APPEAL , PUT THE FOLLOWING QUESTION :

' ' DOES AN AGREEMENT CONFERRING JURISDICTION WHICH IS CONTAINED IN A STANDARD FORM CONTRACT CONCLUDED WITH AND SIGNED BY A PERSON RESIDENT IN LUXEMBOURG BUT TO WHICH HIS ATTENTION HAS NOT SPECIFICALLY BEEN BROUGHT SATISFY THE REQUIREMENTS AS TO VALIDITY CONTAINED IN THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS?

' '

5 IN ORDER TO REPLY TO THIS QUESTION THE PROVISION WHICH IT IS SOUGHT TO INTERPRET SHOULD BE PUT IN PERSPECTIVE IN REGARD TO ARTICLE 17 OF THE CONVENTION . ACCORDING TO ARTICLE 17 A PROROGATION OF JURISDICTION ( VEREINBARUNG UBER DIE ZUSTANDIGKEIT ) AGREED TO BETWEEN THE PARTIES MUST BE BY AGREEMENT IN WRITING OR BY AN ORAL AGREEMENT EVIDENCED IN WRITING . IT FOLLOWS FROM THE JUDGMENTS GIVEN BY THE COURT OF JUSTICE ON 14 DECEMBER 1976 ( CASE 24/76 ESTASIS SALOTTI AND CASE 25/76 SEGOURA ECR 1831 AND 1851 ) THAT THE PURPOSE OF THE REQUIREMENT OF A WRITING UNDER ARTICLE 17 SERVES TO ENSURE THAT THE CONSENSUS BETWEEN THE PARTIES , WHO , BY A PROROGATION OF COMPETENCE , DEPART FROM THE GENERAL RULES FOR DETERMINING JURISDICTION LAID DOWN IN ARTICLES 2 , 5 AND 6 OF THE CONVENTION , IS CLEARLY AND PRECISELY DEMONSTRATED AND HAS ACTUALLY BEEN REACHED . THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL WHICH IT IS SOUGHT TO INTERPRET GOES FURTHER . BY EXPRESSLY PROVIDING THAT AN AGREEMENT CONFERRING JURISDICTION SHALL BE VALID WITH RESPECT TO A PERSON DOMICILED IN LUXEMBOURG ONLY IF THAT PERSON HAS ' ' EXPRESSLY AND SPECIFICALLY SO AGREED ' ' THAT PROVISION IMPOSES MORE SPECIAL AND MORE STRICT CONDITIONS WHICH ARE SUPERIMPOSED ON THOSE IN ARTICLE 17 OF THE CONVENTION .

6 THIS INTERPRETATION ACCORDS WITH THE PURPOSE OF THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE CONVENTION OF 27 SEPTEMBER 1968 . INDEED , IN VIEW OF THE FACT THAT MANY CONTRACTS CONCLUDED BY PERSONS RESIDENT IN THE GRAND DUCHY OF LUXEMBOURG ARE INTERNATIONAL CONTRACTS , THE AUTHORS OF THE CONVENTION OF 27 SEPTEMBER 1968 THOUGHT THAT IT WAS ABSOLUTELY NECESSARY TO MAKE CLAUSES CONFERRING JURISDICTION WHICH WERE LIKELY TO BE USED AGAINST PERSONS DOMICILED IN LUXEMBOURG SUBJECT TO MORE STRINGENT CONDITIONS THAN THOSE CONTAINED IN ARTICLE 17 OF THE CONVENTION . THIS AIM CAN ONLY BE COMPLETELY ACHIEVED IF THE CLAUSE IN QUESTION HAS BEEN ACCEPTED BOTH EXPRESSLY AND SPECIFICALLY BY THE PERSON DOMICILED IN LUXEMBOURG .

7 IN REGARD TO PERSONS DOMICILED IN LUXEMBOURG THERE ARE THEREFORE TWO REQUIREMENTS IN ADDITION TO THE CONDITIONS CONTAINED IN ARTICLE 17 OF THE CONVENTION ; THESE MUST BE CUMULATIVELY FULFILLED , THAT IS TO SAY , FIRST , EXPRESS AGREEMENT AND , SECONDLY , SPECIFIC AGREEMENT . A COMPARISON BETWEEN THE WORDS USED IN ARTICLE 17 AND THOSE USED IN ARTICLE I OF THE PROTOCOL INDICATES THAT THE FIRST OF THESE CONDITIONS IS NOT SATISFIED UNLESS THE AGREEMENT CONFERRING JURISDICTION IS CONTAINED IN A PROVISION WHICH IS SPECIALLY AND EXCLUSIVELY DEVOTED TO IT .

8 IN ORDER TO MEET THE REQUIREMENT OF SPECIFIC AGREEMENT IT IS FURTHER NECESSARY FOR THE LUXEMBOURG PARTY SPECIFICALLY TO SIGN THE CLAUSE CONFERRING JURISDICTION AS AN INDICATION OF HIS AGREEMENT ; HIS MERE SIGNING OF THE CONTRACT IS NOT SUFFICIENT TO SECURE THE SAFEGUARDS WHICH THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL HAS IN VIEW . IT IS NOT , HOWEVER , NECESSARY FOR THAT CLAUSE TO BE MENTIONED IN A DOCUMENT SEPARATE FROM THE ONE WHICH CONSTITUTES THE WRITTEN INSTRUMENT OF THE CONTRACT .

9 . ON THE BASIS OF THE FOREGOING CONSIDERATIONS IT IS APPROPRIATE TO ANSWER THAT THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE CONVENTION OF 27 SEPTEMBER 1968 MUST BE INTERPRETED AS MEANING THAT A CLAUSE CONFERRING JURISDICTION WITHIN THE MEANING OF THAT PROVISION MAY NOT BE CONSIDERED TO HAVE BEEN EXPRESSLY AND SPECIFICALLY AGREED TO BY A PERSON DOMICILED IN LUXEMBOURG UNLESS THAT CLAUSE , BESIDES BEING IN WRITING AS REQUIRED BY ARTICLE 17 OF THE CONVENTION , IS MENTIONED IN A PROVISION SPECIALLY AND EXCLUSIVELY MEANT FOR THIS PURPOSE AND SPECIFICALLY SIGNED BY THE PARTY DOMICILED IN LUXEMBOURG ; IN THIS RESPECT THE SIGNING OF THE CONTRACT AS A WHOLE DOES NOT IN ITSELF SUFFICE . IT IS NOT HOWEVER NECESSARY FOR THAT CLAUSE TO BE MENTIONED IN A DOCUMENT SEPARATE FROM THE ONE WHICH CONSTITUTES THE WRITTEN INSTRUMENT OF THE CONTRACT .

10 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE OBERLANDESGERICHT KOBLENZ ( SECOND CIVIL CHAMBER ) BY ORDER OF 12 OCTOBER 1979 , RECEIVED AT THE COURT ON 23 OCTOBER 1979 , HEREBY RULES :

THE SECOND PARAGRAPH OF ARTICLE I OF THE PROTOCOL ANNEXED TO THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENT IN CIVIL AND COMMERCIAL MATTERS MUST BE INTERPRETED AS MEANING THAT A CLAUSE CONFERRING JURISDICTION WITHIN THE MEANING OF THAT PROVISION MAY NOT BE CONSIDERED TO HAVE BEEN EXPRESSLY AND SPECIFICALLY AGREED TO BY A PERSON DOMICILED IN LUXEMBOURG UNLESS THAT CLAUSE , BESIDES BEING IN WRITING AS REQUIRED BY ARTICLE 17 OF THE CONVENTION , IS MENTIONED IN A PROVISION SPECIALLY AND EXCLUSIVELY MEANT FOR THIS PURPOSE AND SPECIFICALLY SIGNED BY THE PARTY DOMICILED IN LUXEMBOURG ; IN THIS RESPECT THE SIGNING OF THE CONTRACT AS A WHOLE DOES NOT IN ITSELF SUFFICE . IT IS NOT HOWEVER NECESSARY FOR THAT CLAUSE TO BE MENTIONED IN A DOCUMENT SEPARATE FROM THE ONE WHICH CONSTITUTES THE WRITTEN INSTRUMENT OF THE CONTRACT .