61981J0038

CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS - JURISDICTION IN MATTERS RELATING TO A CONTRACT - SCOPE - DISPUTE BETWEEN THE PARTIES AS TO THE EXISTENCE OF THE CONTRACT - JURISDICTION EXTENDS TO THAT QUESTION

( CONVENTION OF 27 SEPTEMBER 1968 , ART . 5 ( 1 ))

IN THE CASES PROVIDED FOR IN ARTICLE 5 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 , THE NATIONAL COURT ' S JURISDICTION TO DETERMINE QUESTIONS RELATING TO A CONTRACT INCLUDES THE POWER TO CONSIDER THE EXISTENCE OF THE CONSTITUENT PARTS OF THE CONTRACT ITSELF , SINCE THAT IS INDISPENSABLE IN ORDER TO ENABLE THE NATIONAL COURT IN WHICH PROCEEDINGS ARE BROUGHT TO EXAMINE WHETHER IT HAS JURISDICTION UNDER THE CONVENTION . THEREFORE THE PLAINTIFF MAY INVOKE THE JURISDICTION OF THE COURTS OF THE PLACE OF PERFORMANCE IN ACCORDANCE WITH ARTICLE 5 ( 1 ) OF THE CONVENTION , EVEN WHEN THE EXISTENCE OF THE CONTRACT ON WHICH THE CLAIM IS BASED IS IN DISPUTE BETWEEN THE PARTIES .

IN CASE 38/81

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 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BY THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

EFFER SPA , CASTEL MAGGIORE ( BOLOGNA ), ITALY ,

AND

HANS-JOACHIM KANTNER , LANGEN , FEDERAL REPUBLIC OF GERMANY ,

ON THE INTERPRETATION OF ARTICLE 5 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( OFFICIAL JOURNAL 1978 , L 304 , P . 36 ),

1 BY AN ORDER DATED 29 JANUARY 1981 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 19 FEBRUARY 1981 , THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER THE PROTOCOL OF 3 JUNE 1971 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 A QUESTION ON THE INTERPRETATION OF ARTICLE 5 ( 1 ) OF THAT CONVENTION , PURSUANT TO WHICH :

' ' A PERSON DOMICILED IN A CONTRACTING STATE MAY , IN ANOTHER CONTRACTING STATE , BE SUED :

( 1 ) IN MATTERS RELATING TO A CONTRACT , IN THE COURTS OF THE PLACE OF PERFORMANCE OF THE OBLIGATION IN QUESTION ;

. . . ' ' .

2 THE QUESTION WAS RAISED IN THE CONTEXT OF A DISPUTE BETWEEN EFFER SPA OF CASTEL MAGGIORE ( BOLOGNA , ITALY ) AND MR KANTNER , A PATENT AGENT PRACTISING IN DARMSTADT ( FEDERAL REPUBLIC OF GERMANY ).

3 EFFER SPA , THE APPELLANT ON A POINT OF LAW IN THE MAIN PROCEEDINGS , IS AN UNDERTAKING WHICH MANUFACTURES CRANES . THEY WERE DISTRIBUTED IN THE FEDERAL REPUBLIC OF GERMANY THROUGH THE HYDRAULIKKRAN UNDERTAKING ( HEREINAFTER REFERRED TO AS ' ' HYKRA ' ' ). EFFER DEVELOPED A NEW MACHINE AND IT WAS NECESSARY TO ESTABLISH WHETHER THE SALE OF THAT MACHINE WAS CONTRARY TO EXISTING PATENT RIGHTS . AFTER A DISCUSSION WITH EFFER , HYKRA COMMISSIONED MR KANTNER , PATENT AGENT , IN DECEMBER 1971 TO CARRY OUT INVESTIGATIONS IN GERMANY FOR THAT PURPOSE . THE DISPUTE BETWEEN THE PARTIES TO THE MAIN ACTION CONCERNS THE QUESTION WHETHER HYKRA , WHICH HAS SINCE BECOME INSOLVENT , COMMISSIONED MR KANTNER IN THE NAME OF EFFER OR IN ITS OWN NAME . IN ORDER TO OBTAIN PAYMENT OF HIS FEES - THE AMOUNT OF WHICH IS NOT IN DISPUTE - MR KANTNER BROUGHT AN ACTION BEFORE A GERMAN COURT IN DECEMBER 1974 . EFFER DENIED THE EXISTENCE OF A CONTRACTUAL RELATIONSHIP BETWEEN IT AND THE PATENT AGENT . OWING TO THE ALLEGED ABSENCE OF A CONTRACT , EFFER ARGUED THAT THE GERMAN COURTS HAD NO JURISDICTION . THE GERMAN COURTS FOUND IN FAVOUR OF MR KANTNER , AT FIRST INSTANCE AND ON APPEAL . EFFER THEN APPEALED ON A POINT OF LAW TO THE BUNDESGERICHTSHOF , WHICH DECIDED TO STAY THE PROCEEDINGS AND REFER THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' ' MAY THE PLAINTIFF INVOKE THE JURISDICTION OF THE COURTS OF THE PLACE OF PERFORMANCE IN ACCORDANCE WITH ARTICLE 5 ( 1 ) OF THE CONVENTION EVEN WHEN THE EXISTENCE OF THE CONTRACT ON WHICH THE CLAIM IS BASED IS IN DISPUTE BETWEEN THE PARTIES?

' '

4 MR KANTNER , THE RESPONDENT IN THE APPEAL ON A POINT OF LAW , AND THE COMMISSION OF THE EUROPEAN COMMUNITIES TAKE THE VIEW THAT THIS QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE . THE UNITED KINGDOM , ALTHOUGH IT DOES NOT WHOLLY ACCEPT THAT ARGUMENT , NEVERTHELESS CONSIDERS THAT A DISPUTE AS TO THE EXISTENCE OF THE CONTRACT DOES NOT PREVENT ARTICLE 5 ( 1 ) OF THE CONVENTION FROM BEING APPLIED , PROVIDED THAT THE OBLIGATION IS PRIMA FACIE OF A CONTRACTUAL NATURE AND THE ACTION IS BONA FIDE BROUGHT BY THE PLAINTIFF . ONLY EFFER IS OF THE OPINION THAT THE PLAINTIFF MAY NOT INVOKE THE JURISDICTION OF THE COURTS FOR THE PLACE OF PERFORMANCE OF THE CONTRACT WHEN THE EXISTENCE OF THE CONTRACT ON WHICH THE CLAIM IS BASED IS IN DISPUTE .

5 IT IS ESTABLISHED THAT THE WORDING OF ARTICLE 5 ( 1 ) OF THE CONVENTION DOES NOT RESOLVE THIS QUESTION UNEQUIVOCALLY . WHILST THE GERMAN VERSION OF THAT PROVISION CONTAINS THE WORDS ' ' VERTRAG ODER ANSPRUCHE AUS EINEM VERTRAG ' ' , THE FRENCH AND ITALIAN VERSIONS CONTAIN THE EXPRESSIONS ' ' EN MATIERE CONTRACTUELLE ' ' AND ' ' IN MATERIA CONTRATTUALE ' ' RESPECTIVELY . UNDER THESE CIRCUMSTANCES , IN VIEW OF THE LACK OF UNIFORMITY BETWEEN THE DIFFERENT LANGUAGE VERSIONS OF THE PROVISION IN QUESTION , IT IS ADVISABLE , IN ORDER TO ARRIVE AT THE INTERPRETATION REQUESTED BY THE NATIONAL COURT , TO HAVE REGARD BOTH TO THE CONTEXT OF ARTICLE 5 ( 1 ) AND TO THE PURPOSE OF THE CONVENTION .

6 IT IS CLEAR FROM THE PROVISIONS OF THE CONVENTION , AND IN PARTICULAR FROM THE PREAMBLE THERETO , THAT ITS ESSENTIAL AIM IS TO STRENGTHEN IN THE COMMUNITY THE LEGAL PROTECTION OF PERSONS THEREIN ESTABLISHED . FOR THAT PURPOSE , THE CONVENTION PROVIDES A COLLECTION OF RULES WHICH ARE DESIGNED INTER ALIA TO AVOID THE OCCURRENCE , IN CIVIL AND COMMERCIAL MATTERS , OF CONCURRENT LITIGATION IN TWO OR MORE MEMBER STATES AND WHICH , IN THE INTERESTS OF LEGAL CERTAINTY AND FOR THE BENEFIT OF THE PARTIES , CONFER JURISDICTION UPON THE NATIONAL COURT TERRITORIALLY BEST QUALIFIED TO DETERMINE A DISPUTE .

7 IT FOLLOWS FROM THE PROVISIONS OF THE CONVENTION , AND IN PARTICULAR FROM THOSE IN SECTION 7 OF TITLE II , THAT , IN THE CASES PROVIDED FOR IN ARTICLE 5 ( 1 ) OF THE CONVENTION , THE NATIONAL COURT ' S JURISDICTION TO DETERMINE QUESTIONS RELATING TO A CONTRACT INCLUDES THE POWER TO CONSIDER THE EXISTENCE OF THE CONSTITUENT PARTS OF THE CONTRACT ITSELF , SINCE THAT IS INDISPENSABLE IN ORDER TO ENABLE THE NATIONAL COURT IN WHICH PROCEEDINGS ARE BROUGHT TO EXAMINE WHETHER IT HAS JURISDICTION UNDER THE CONVENTION . IF THAT WERE NOT THE CASE , ARTICLE 5 ( 1 ) OF THE CONVENTION WOULD BE IN DANGER OF BEING DEPRIVED OF ITS LEGAL EFFECT , SINCE IT WOULD BE ACCEPTED THAT , IN ORDER TO DEFEAT THE RULE CONTAINED IN THAT PROVISION IT IS SUFFICIENT FOR ONE OF THE PARTIES TO CLAIM THAT THE CONTRACT DOES NOT EXIST . ON THE CONTRARY , RESPECT FOR THE AIMS AND SPIRIT OF THE CONVENTION DEMANDS THAT THAT PROVISION SHOULD BE CONSTRUED AS MEANING THAT THE COURT CALLED UPON TO DECIDE A DISPUTE ARISING OUT OF A CONTRACT MAY EXAMINE , OF ITS OWN MOTION EVEN , THE ESSENTIAL PRECONDITIONS FOR ITS JURISDICTION , HAVING REGARD TO CONCLUSIVE AND RELEVANT EVIDENCE ADDUCED BY THE PARTY CONCERNED , ESTABLISHING THE EXISTENCE OR THE INEXISTENCE OF THE CONTRACT . THIS INTERPRETATION IS , MOREOVER , IN ACCORDANCE WITH THAT GIVEN IN THE JUDGMENT OF 14 DECEMBER 1977 IN CASE 73/77 ( SANDERS V VAN DER PUTTE ( 1977 ) ECR 2383 ) CONCERNING THE JURISDICTION OF THE COURTS OF THE STATE WHERE THE IMMOVABLE PROPERTY IS SITUATED IN MATTERS RELATING TO TENANCIES OF IMMOVABLE PROPERTY ( ARTICLE 16 ( 1 ) OF THE CONVENTION ). IN THAT CASE THE COURT HELD THAT SUCH JURISDICTION APPLIES EVEN IF THERE IS A DISPUTE AS TO THE ' ' EXISTENCE ' ' OF A LEASE .

8 IT IS THEREFORE NECESSARY TO REPLY TO THE QUESTION PUT BY THE BUNDESGERICHTSHOF THAT THE PLAINTIFF MAY INVOKE THE JURISDICTION OF THE COURTS OF THE PLACE OF PERFORMANCE IN ACCORDANCE WITH ARTICLE 5 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS EVEN WHEN THE EXISTENCE OF THE CONTRACT ON WHICH THE CLAIM IS BASED IS IN DISPUTE BETWEEN THE PARTIES .

COSTS

THE COSTS INCURRED BY THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE ; AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE BUNDESGERICHTSHOF BY AN ORDER DATED 29 JANUARY 1981 , HEREBY RULES :

THE PLAINTIFF MAY INVOKE THE JURISDICTION OF THE COURTS OF THE PLACE OF PERFORMANCE IN ACCORDANCE WITH ARTICLE 5 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS EVEN WHEN THE EXISTENCE OF THE CONTRACT ON WHICH THE CLAIM IS BASED IS IN DISPUTE BETWEEN THE PARTIES .