61987J0009

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CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS - SPECIAL JURISDICTION - JURISDICTION "IN MATTERS RELATING TO A CONTRACT" - CONCEPT - INDEPENDENT INTERPRETATION - INDEPENDENT COMMERCIAL AGENCY AGREEMENT - CLAIMS FOR THE PAYMENT OF COMMISSION AND COMPENSATION FOR WRONGFUL REPUDIATION OF A CONTRACT - INCLUSION

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

THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" IN ARTICLE 5 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS IS TO BE REGARDED AS AN INDEPENDENT CONCEPT WHICH, FOR THE PURPOSE OF THE APPLICATION OF THE CONVENTION, MUST BE INTERPRETED BY REFERENCE PRINCIPALLY TO THE SYSTEM AND OBJECTIVES OF THE CONVENTION IN ORDER TO ENSURE THAT IT IS FULLY EFFECTIVE .

PROCEEDINGS RELATING TO THE WRONGFUL REPUDIATION OF AN INDEPENDENT COMMERCIAL AGENCY AGREEMENT AND THE PAYMENT OF COMMISSION DUE UNDER SUCH AN AGREEMENT ARE PROCEEDINGS IN MATTERS RELATING TO A CONTRACT WITHIN THE MEANING OF ARTICLE 5 ( 1 ) OF THE CONVENTION .

IN CASE 9/87

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 ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BY THE COUR D' APPEL ( COURT OF APPEAL ), BRUSSELS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ARCADO SPRL, WHOSE REGISTERED OFFICE IS IN WATERLOO ( BELGIUM ),

AND

HAVILAND SA, WHOSE REGISTERED OFFICE IS IN LIMOGES ( FRANCE ),

ON THE INTERPRETATION OF ARTICLE 5 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 ( OFFICIAL JOURNAL 1978 L 304, P . 36 ),

THE COURT ( SIXTH CHAMBER )

COMPOSED OF : O . DUE, PRESIDENT OF THE CHAMBER, T . KOOPMANS, K . BAHLMANN, C . KAKOURIS, AND T.F . O' HIGGINS, JUDGES,

ADVOCATE GENERAL : SIR GORDON SLYNN

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF :

ARCADO SPRL BY P . VAN DE WIELE AND O . RALET DURING THE WRITTEN AND ORAL PROCEDURE,

HAVILAND SA BY F.X . DE DORLODOT DURING THE WRITTEN AND ORAL PROCEDURE,

THE GOVERNMENT OF THE ITALIAN REPUBLIC BY O . FIUMARA DURING THE WRITTEN PROCEDURE,

THE UNITED KINGDOM BY H.R.L . PURSE AND M.C.L . CARPENTER DURING THE WRITTEN PROCEDURE,

THE COMMISSION OF THE EUROPEAN COMMUNITIES BY G . KREMLIS ACTING AS AGENT, ASSISTED BY G . CHERUBINI, DURING THE WRITTEN AND ORAL PROCEDURE,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 18 NOVEMBER 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 17 DECEMBER 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY JUDGMENT OF 11 SEPTEMBER 1986, WHICH WAS RECEIVED AT THE COURT ON 16 JANUARY 1987, THE COUR D' APPEL, BRUSSELS, 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 ( HEREINFTER REFERRED TO AS "THE CONVENTION "), A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 5 ( 1 ) OF THE CONVENTION .

2 THAT QUESTION WAS RAISED IN THE CONTEXT OF PROCEEDINGS CONCERNING THE PERFORMANCE OF AN INDEPENDENT COMMERCIAL AGENCY AGREEMENT BY WHICH HAVILAND SA, WHOSE REGISTERED OFFICE IS IN LIMOGES ( FRANCE ) APPOINTED AGECOBEL SA, WHOSE REGISTERED OFFICE IS IN BELGIUM, AS ITS AGENT FOR THE SALE OF PORCELAIN PRODUCTS IN BELGIUM AND LUXEMBOURG .

3 FOLLOWING THE TERMINATION OF THAT AGREEMENT BY HAVILAND, AGECOBEL INSTITUTED PROCEEDINGS AGAINST HAVILAND ON 13 NOVEMBER 1978 BEFORE THE TRIBUNAL DE COMMERCE ( COMMERCIAL COURT ), BRUSSELS, SEEKING THE PAYMENT OF COMPENSATION FOR WRONGFUL TERMINATION OF THE AGREEMENT AND THE BALANCE OF OUTSTANDING COMMISSION . HAVILAND OBJECTED THAT THE COURT HAD NO JURISDICTION RATIONE LOCI ON THE GROUND THAT THE ACTION FOR COMPENSATION WAS BASED ON A QUASI-DELICT COMMITTED AT THE PLACE FROM WHICH TERMINATION OF THE AGREEMENT WAS NOTIFIED TO THE OTHER PARTY, NAMELY ITS REGISTERED OFFICE .

4 BY JUDGMENT OF 26 MAY 1982 THE TRIBUNAL DE COMMERCE REJECTED THE OBJECTION THAT IT LACKED JURISDICTION BECAUSE IT CONSIDERED THAT THE DISPUTE WAS CONTRACTUAL IN ORIGIN AND THAT IT THEREFORE HAD JURISDICTION UNDER ARTICLE 5 ( 1 ) OF THE CONVENTION . BY JUDGMENT OF 22 JUNE 1983 THE TRIBUNAL DE COMMERCE ORDERED HAVILAND TO PAY COMPENSATION FOR ITS SUDDEN AND PREMATURE REPUDIATION OF THE AGREEMENT AND TO PAY ARREARS OF COMMISSION . IN ADDITION, IT GRANTED HAVILAND' S COUNTERCLAIM AND THEREFORE ORDERED AGECOBEL TO PAY OUTSTANDING BALANCES ON INVOICES AND COMPENSATION .

5 AGECOBEL LODGED AN APPEAL BEFORE THE COUR D' APPEL, BRUSSELS SEEKING AN INCREASE IN THE COMPENSATION AWARDED AND AN ORDER THAT HAVILAND PAY STATUTORY INTEREST . IN A CROSS-APPEAL HAVILAND RELIED ON ARTICLE 5 ( 3 ) OF THE CONVENTION AND CONTESTED THE JURISDICTION OF THE BELGIAN COURTS . BY A DOCUMENT LODGED AT THE REGISTRY OF THE COUR D' APPEL, BRUSSELS ON 5 JUNE 1985, ARCADO SPRL, WHOSE REGISTERED OFFICE IS IN BELGIUM AND WHICH HAD SUCCEEDED TO THE RIGHTS OF AGECOBEL, TOOK OVER THE PROCEEDINGS INSTITUTED BY THE LATTER .

6 THE COUR D' APPEL TOOK THE VIEW THAT WHILST THE DISPUTE CONCERNING THE PAYMENT OF COMMISSION CLEARLY SUGGESTED THAT THE MATTERS AT ISSUE WERE CONTRACTUAL IN NATURE IT WAS NEVERTHELESS NECESSARY TO DETERMINE WHETHER THE CLAIM FOR COMPENSATION FOR THE SUDDEN AND PREMATURE REPUDIATION OF THE CONTRACT FALLS WITHIN THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" WITHIN THE MEANING OF ARTICLE 5 ( 1 ) OF THE CONVENTION ACCORDING TO THE INDEPENDENT INTERPRETATION OF THAT CONCEPT .

7 THE COUR D' APPEL ALSO DECIDED TO STAY THE PROCEEDINGS AND TO REFER THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

"ARE PROCEEDINGS RELATING TO THE WRONGFUL REPUDIATION OF AN ( INDEPENDENT ) COMMERCIAL AGENCY AGREEMENT AND THE PAYMENT OF COMMISSION DUE UNDER SUCH AN AGREEMENT PROCEEDINGS IN MATTERS RELATING TO A CONTRACT WITHIN THE MEANING OF ARTICLE 5 ( 1 ) OF THE BRUSSELS CONVENTION OF 27 SEPTEMBER 1968?"

8 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS, THE COURSE OF THE PROCEDURE AND THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT BY THE PARTIES TO THE MAIN PROCEEDINGS, THE COMMISSION, THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE UNITED KINGDOM, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

9 BY WAY OF DEROGATION FROM THE GENERAL RULE GOVERNING JURISDICTION SET OUT IN THE FIRST PARAGRAPH OF ARTICLE 2 OF THE CONVENTION, ARTICLE 5 ( 1 ) OF THE CONVENTION PROVIDES 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 COURTS OF THE PLACE OF PERFORMANCE OF THE OBLIGATION IN QUESTION ...".

10 AS THE COURT HELD IN ITS JUDGMENT OF 22 MARCH 1983 IN CASE 34/82 ( MARTIN PETERS BAUUNTERNEHMUNG GMBH V ZUID NEDERLANDSE AANNEMERS VERENIGING (( 1983 )) ECR 987 ) THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" SERVES AS A CRITERION TO DEFINE THE SCOPE OF ONE OF THE RULES OF SPECIAL JURISDICTION AVAILABLE TO THE PLAINTIFF . HAVING REGARD TO THE OBJECTIVE AND THE GENERAL SCHEME OF THE CONVENTION, IT IS IMPORTANT THAT, IN ORDER TO ENSURE AS FAR AS POSSIBLE THE EQUALITY AND UNIFORMITY OF THE RIGHTS AND OBLIGATIONS ARISING OUT OF THE CONVENTION FOR THE CONTRACTING STATES AND THE PERSONS CONCERNED, THAT CONCEPT SHOULD NOT BE INTERPRETED SIMPLY AS REFERRING TO THE NATIONAL LAW OF ONE OR OTHER OF THE STATES CONCERNED .

11 CONSEQUENTLY, THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" IS TO BE REGARDED AS AN INDEPENDENT CONCEPT WHICH, FOR THE PURPOSE OF THE APPLICATION OF THE CONVENTION, MUST BE INTERPRETED BY REFERENCE PRINCIPALLY TO THE SYSTEM AND OBJECTIVES OF THE CONVENTION IN ORDER TO ENSURE THAT IT IS FULLY EFFECTIVE .

12 THERE IS NO DOUBT THAT A CLAIM FOR THE PAYMENT OF COMMISSION DUE UNDER AN INDEPENDENT COMMERCIAL AGENCY AGREEMENT FINDS ITS VERY BASIS IN THAT AGREEMENT AND CONSEQUENTLY CONSTITUTES A MATTER RELATING TO A CONTRACT WITHIN THE MEANING OF ARTICLE 5 ( 1 ) OF THE CONVENTION .

13 THE SAME VIEW MUST BE TAKEN OF A CLAIM FOR COMPENSATION FOR THE WRONGFUL REPUDIATION OF SUCH AN AGREEMENT AS THE BASIS FOR SUCH COMPENSATION IS THE FAILURE TO COMPLY WITH A CONTRACTUAL OBLIGATION .

14 AS REGARDS, MORE PARTICULARLY, THE RIGHT OF A SELF-EMPLOYED COMMERCIAL AGENT TO NOTICE, ITS CONTRACTUAL NATURE AND THEREFORE THE CONTRACTUAL NATURE OF THE COMPENSATION IN LIEU OF NOTICE WERE RECOGNIZED IN ARTICLES 15 AND 17 OF COUNCIL DIRECTIVE 86/653 OF 18 DECEMBER 1986 ON THE COORDINATION OF THE LAWS OF THE MEMBER STATES RELATING TO SELF-EMPLOYED COMMERCIAL AGENTS ( OFFICIAL JOURNAL 1986 L 382, P . 17 ).

15 IN ADDITION, ARTICLE 10 OF THE CONVENTION ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS OF 19 JUNE 1980 ( OFFICIAL JOURNAL 1980 L 266, P . 1 ) CONFIRMS THE CONTRACTUAL NATURE OF JUDICIAL PROCEEDINGS SUCH AS THOSE IN POINT INASMUCH AS IT PROVIDES THAT THE LAW APPLICABLE TO A CONTRACT GOVERNS THE CONSEQUENCES OF A TOTAL OR PARTIAL FAILURE TO COMPLY WITH OBLIGATIONS ARISING UNDER IT AND CONSEQUENTLY THE CONTRACTUAL LIABILITY OF THE PARTY RESPONSIBLE FOR SUCH BREACH .

16 THE REPLY TO THE QUESTION RAISED BY THE COUR D' APPEL, BRUSSELS, MUST THEREFORE BE THAT PROCEEDINGS RELATING TO THE WRONGFUL REPUDIATION OF AN INDEPENDENT COMMERCIAL AGENCY AGREEMENT AND THE PAYMENT OF COMMISSION DUE UNDER SUCH AN AGREEMENT ARE PROCEEDINGS IN MATTERS RELATING TO A CONTRACT WITHIN THE MEANING OF ARTICLE 5 ( 1 ) OF THE CONVENTION OF 27 SEPTEMBER 1968 .

COSTS

17 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC, THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT ( SIXTH CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D' APPEL, BRUSSELS, BY A JUDGMENT OF 11 SEPTEMBER 1986, HEREBY RULES :

PROCEEDINGS RELATING TO THE WRONGFUL REPUDIATION OF AN INDEPENDENT COMMERCIAL AGENCY AGREEMENT AND THE PAYMENT OF COMMISSION DUE UNDER SUCH AN AGREEMENT ARE PROCEEDINGS IN MATTERS RELATING TO A CONTRACT WITHIN THE MEANING OF ARTICLE 5 ( 1 ) OF THE BRUSSELS CONVENTION OF 27 SEPTEMBER 1968 .