CJEC, March 22, 1983, No 34-82

THE COURT

1 By a judgment dated 15 january 1982 which was received at the court on 21 january 1982, the hoge raad der nederlanden (supreme court of the Netherlands) referred to the court of justice 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 (hereinafter referred to as ' ' the convention ' ') two questions on the interpretation of article 5 (1) of the convention.

2 Those questions arose in the course of a dispute between zuid nederlandse aannemers vereniging (south Netherlands contractors ' association), hereinafter referred to as ' ' the association ' ', an association under Netherlands law, having its registered office in Maastricht and its administrative office at heeze (north brabant) and one of its members, martin peters bauunternehmung gmbh (hereinafter referred to as ' ' peters ' '), a company incorporated under german law having its registered office in aachen, in the federal republic of Germany, concerning the recovery of sums payable by the latter by virtue of an internal rule adopted by the organs of the association and binding on its members.

3 The association brought a claim before the arrondissementsrechtbank (district court), ' s-hertogenbosch, which dismissed the objection of lack of jurisdiction raised by peters. It ruled that it had jurisdiction on the ground that in its view the dispute arose out of a contract and that it therefore had jurisdiction under article 5 (1) of the convention, which provides that a person, in this case peters, domiciled in a contracting state may, in another contracting state, be sued in matters relating to a contract in the courts for the place of performance of the obligation in question.

4 Peters appealed against that decision to the gerechtshof (regional court of appeal), ' s-hertogenbosch, which confirmed the judgment at first instance on the ground that the obligation to pay the amounts claimed by the association from peters should be regarded as a contractual obligation for the purposes of article 5 (1) of the convention.

5 Peters brought an appeal on a point of law against that decision before the hoge raad der nederlanden challenging the analysis made by the gerechtshof, s ' -hertogenbosch, in relation to the nature of the relationship between it and the association.

6 The hoge raad decided, before giving a decision, to refer to the court of justice the following two questions on the interpretation of the Brussels convention:

' ' 1. Does article 5 (1) of the convention apply to claims which are made by an association constituted under private law possessing legal personality against one of its members in a matter relating to obligations in regard to the payment of a sum of money and which have their basis in the relationship between the parties by virtue of membership, such relationship arising from the defendant party ' s joining the association as a member by virtue of a legal transaction entered into for that purpose?

2. Does it make any difference whether the obligations in question arise simply from the act of becoming a member, or from that act in conjunction with one or more decisions made by organs of the association?

' '

1. First question

7 Article 5 of the convention makes provision in a number of cases for a special jurisdiction which the plaintiff may choose, in derogation from the general jurisdiction provided for in article 2 (1) of the convention.

8 According to article 5 (1) of the convention: ' ' a person domiciled in a contracting state may, in another contracting state, be sued: (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question. ' '

9 Thus 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 objectives and the general scheme of the convention, that 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.

10 Therefore, and as the court ruled on similar grounds in relation to the words ' ' the operation of a branch, agency or other establishment ' ' referred to in article 5 (5) of the convention (judgment of 22. 11. 1978 in case 33-78 somafer v saar-ferngas ag (1978) ecr 2183), the concept of matters relating to a contract should be regarded as an independent concept which, for the purpose of the application of the convention, must be interpreted by reference chiefly to the system and objectives of the convention, in order to ensure that it is fully effective.

11 In this regard it should be pointed out that although article 5 makes provision in a number of cases for a special jurisdiction which the plaintiff may choose, this is because of the existence, in certain clearly-defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings.

12 In that context, the designation by article 5 (1) of the convention of the courts for the place of performance of the obligation in question expresses the concern that, because of the close links created by a contract between the parties thereto, it should be possible for all the difficulties which may arise on the occasion of the performance of a contractual obligation to be brought before the same court: that for the place of performance of the obligation.

13 In that regard it appears that membership of an association creates between the members close links of the same kind as those which are created between the parties to a contract and that consequently the obligations to which the national court refers may be regarded as contractual for the purpose of the application of article 5 (1) of the convention.

14 Since under national legal systems it is usually stipulated that the place in which the association is established is to be the place of performance of obligations arising out of the act of becoming a member, the application of article 5 (1) of the convention also has practical advantages: the court for the place in which the association has its seat is in fact usually the best fitted to understand the documents of constitution, rules and decisions of the association, and also the circumstances out of which the dispute arose.

15 Under those circumstances the answer to the first question should be that the obligations in regard to the payment of a sum of money which have their basis in the relationship between an association and its members by virtue of membership must be regarded as ' ' matters relating to a contract ' ' within the meaning of article 5 (1) of the convention.

2. Second question

16 The national court asks the court of justice to state whether, in order to determine whether or not an obligation of a member towards an association falls within ' ' matters relating to a contract ' ', a distinction should be drawn according to whether the obligation in question arises simply from the act of becoming a member or results from that act in conjunction with a decision made by an organ of the association.

17 It should be noted that multiplication of the bases of jurisdiction in one and the same type of case is not likely to encourage legal certainty and effective legal protection throughout the territory of the community. The provisions of the convention should therefore be interpreted in such a way that the court seised is not required to declare that it has jurisdiction to adjudicate upon certain applications but has no jurisdiction to hear certain other applications, even though they are closely related. Moreover, respect for the purposes and spirit of the convention requires an interpretation of article 5 which enables the national court to rule on its own jurisdiction without being compelled to consider the substance of the case.

18 On those grounds, the answer should be that the fact that the obligation in question arises simply from the act of becoming a member or results from that act in conjunction with a decision of an organ of the association has no effect on the application of the provisions of article 5 (1) of the convention to a dispute concerning that obligation.

Costs

19 The costs incurred by the commission of the european communities, the italian government and the government of the federal republic of Germany, which have 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 before the national court, costs are a matter for that court.

On those grounds,

The court,

In answer to the questions submitted to it by the hoge raad der nederlanden by judgment of 15 january 1982, hereby rules:

1. Obligations in regard to the payment of a sum of money which have their basis in the relationship existing between an association and its members by virtue of membership are ' ' matters relating to a contract ' ' within the meaning of article 5 (1) of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters.

2. It makes no difference in that regard whether the obligations in question arise simply from the act of becoming a member or from that act in conjunction with one or more decisions made by organs of the association.