delivered on 4 February 1986 (*1)

Mr President,

Members of the Court,

1.The parties to the main proceedings are a French bank, Crédit lyonnais, Forbach branch, and Mr Rudolf Anterist, residing in Saarbrücken (Federal Republic of Germany), who had jointly and severally guaranteed to the bank the debts of Anterist & Schneider, a company whose registered office is situated at Stiring-Wendel (France). The printed contract of guarantee signed on 16 May contained the following clause:

‘All claims and notices shall be served upon Credit lyonnais at its... branch at present situated at No ... rue and the court within whose jurisdiction that branch is situated shall have exclusive jurisdiction to adjudicate upon all matters concerning the performance of this agreement, irrespective of who is the defendant.’

The parties had thus agreed that the tribunal de grande instance [Regional Court], Sarreguemines, within whose jurisdiction the Forbach branch of the Crédit lyonnais is situated, was to have jurisdiction.

Several years later, Anterist & Schneider was unable to pay its debts when they fell due. Crédit lyonnais therefore brought an action against the guarantors before the Landgericht [Regional Court] Saarbrücken within whose jurisdiction Mr Anterist was residing. Mr Anterist challenged the jurisdiction of that court. An appeal on a point of law was lodged and the case came before the Bundesgerichtshof [Federal Court of Justice], which, by order of 20 December 1984, referred to the Court of Justice for a preliminary ruling a question concerning the interpretation of the third paragraph of Article 17 of the Convention of 17 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as ‘the Convention’). The question is as follows:

‘Is an agreement conferring jurisdiction to be regarded as “concluded for the benefit of only one of the parties” within the meaning of the third paragraph of Article 17 of the Convention even where all that is established is that the parties have effectively agreed, in accordance with the first paragraph of Article 17, that a court or the courts of the Contracting State in which that party is domiciled are to have international jurisdiction?’

The two paragraphs of Article 17 referred to by the national court are worded as follows:

First paragraph:

‘If the parties, one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement evidenced in writing, agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction.’

Third paragraph:

‘If the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.’

2.The parties to the main proceedings, the Commission and two Member States, Italy and the United Kingdom, have submitted observations which are summarized below.

According to Mr Anterist, who considers that the question submitted should be answered in the negative, the choice of the court of a party's domicile should not be regarded as a criterion for assessing the benefit referred to in the exception set out in the third paragraph of Article 17, since that would in effect render the rule in the first paragraph of Article 17 meaningless.

In his view, that paragraph enables the parties to know in advance which court has exclusive jurisdiction. The inquiries which the court would necessarily have to carry out in order to ascertain whether the choice of the court of a party's domicile constitutes an advantage solely for the party claiming the application of the third paragraph would scarcely be compatible with the aim of the Convention, which is to clarify and simplify proceedings.

3.The United Kingdom also submitted that the third paragraph of Article 17 constituted an exception to the first paragraph of that article. Since most clauses conferring jurisdiction are identical to that at issue in this case, an affirmative answer to the question submitted would render wholly ineffective the rule in the first paragraph of Article 17 conferring exclusive jurisdiction.

Furthermore, in its view, the third paragraph of Article 17 applies only to clauses specifying the court in which a party may institute proceedings whilst leaving the other party free to rely on the general provisions of the Convention.

4.The Italian Government considers that the provision in question is applicable if one party, for whatever reason, has compelled the other party to accept the jurisdiction of a particular court. However, it is not always clear from jurisdiction clauses whether they were agreed in the common interest of the parties — in which case the first paragraph of Article 17 applies — or in the interest of only one of the parties. Consequently, the national court must carefully ascertain the intention of the parties and determine whether the agreement was concluded in the interests of only one of the parties. The choice of the court of a party's domicile may suggest that the jurisdiction clause is in the interests of only one of the parties but it is important to determine whether it also gives an advantage to the other party, albeit a secondary one. If the clause is in the interests of only one of the parties, that party is at liberty to institute proceedings in any court which has jurisdiction under the Convention, if only to avoid objections concerning the validity of the clause.

5.The Commission's view, with which the representative of Crédit lyonnais, which had not submitted any written observations, agreed at the hearing, is as follows: the first paragraph of Article 17 does not lay down a rule but an exception to Articles 2, 5 and 6 of the Convention; the second and third paragraphs merely define its scope. The first paragraph of Article 17 should therefore be interpreted restrictively.

Any jurisdiction agreement that departs from the general principle laid down in Article 2 of the Convention, which favours the defendant, is presumed to be in the interests of the plaintiff if he has obtained an agreement overturning the general rule laid down in Article 2. Paragraph 3 of Article 17 authorizes the plaintiff not to take advantage of his objectively advantageous legal position.

The Commission considers that, in order to ensure that the aims of the Convention are respected, the ‘advantage’ should be assessed in accordance with objective criteria. The jurisdiction conferred on the court of the domicile of one of the parties constitutes one of those criteria. Account may also be taken of the fact that a party in a financially stronger position has imposed its standard terms and conditions of trade on the other party, even if the court on which jurisdiction is conferred is not the court of the stronger party's domicile. If the weaker party wishes to avoid the application of the third paragraph of Article 17, it must ensure that its own interest in the jurisdiction clause is clear from its wording. In those circumstances, the stronger party's advantage is no longer exclusive.

6.There is a paradox in these proceedings. Mr Anterist seeks the application of a jurisdiction clause which Crédit lyonnais is endeavouring to prevent on the ground that the clause was agreed for its benefit only. Plainly, the paradox is only apparent. I need not inquire into the real interests at stake in that academic discussion. That is a matter for the Bundesgerichtshof and I shall merely attempt to provide some considerations to enable the Court to answer the question referred to it.

7.The third paragraph of Article 17 cannot be interpreted in isolation. The parties to the main proceedings and the interveners have attempted to set that provision in the broader context of the Convention. I shall adopt the same approach.

The purpose of the Convention, according to its preamble, is to simplify the formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and to strengthen in the Community the legal protection of persons therein established. The preamble also sets out the means for attaining those objectives, which include first and foremost the determination of the international jurisdiction of the courts of the Member States. Briefly, the aim of the Convention is to introduce legal certainty into procedural matters by giving each individual the means of determining with certainty the court of his choice so that he can assert his rights effectively.

Article 17 forms part of Title II of the Convention, which deals with jurisdiction. It is arranged as follows: Section 1 (‘General provisions’) provides in Article 2 that ‘... persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State’. The jurisdiction of the court is therefore determined by the country of the defendant's domicile. Sections 2, 3 and 4 deal with jurisdiction in special matters whilst Section 5 deals with exclusive jurisdiction, which constitutes an exception to the rule actor sequitur forum ret. Sections 7, 8 and 9 are concerned with the functions of the court.

Article 17 is in Section 6 (‘Prorogation of jurisdiction’). The wording of that provision is significant: the first paragraph makes provision for the prorogation of jurisdiction by agreement, which is binding on the parties subject to the provisos in the second and third paragraphs.

The structure of the scheme established by the Convention in regard to jurisdiction is therefore as follows: alongside the general rules laid down in Articles 2 to 16, there is a body of rules, contained in Article 17, under which, in cases in which courts have exclusive jurisdiction under Article 16, the parties to a contract may avoid the general rules by means of a clause conferring jurisdiction.

That scheme provides the key to the interpretation of the first paragraph of Article 17.

In that regard a distinction must be drawn between the existence of a clause conferring jurisdiction and its binding force. Such a clause cannot be presumed to exist and if there is any doubt the general rules will apply. From that point of view, the first paragraph of Article 17 must be strictly construed. That approach has been confirmed by the Court, which has held that:

‘... the requirements set out in Article 17 governing the validity of jurisdiction clauses must be strictly construed since the purpose of Article 17 is to ensure that the parties have actually consented to such a clause, which derogates from the ordinary jurisdiction rules laid down in Articles 2, 5 and 6 of the Convention, and that their consent is clearly and precisely demonstrated’ (judgment of 19 June 1984 in Case 71/83 Tilly Russ v Nova [1984] ECR 2417 at p. 2432, paragraph 14 of the decision).

The position with regard to the binding force of the jurisdiction clause is different. Here we return to the fundamental rule that the parties are bound by the agreement concluded between them. The clause conferring jurisdiction is binding on the contracting parties, provided that it is not contrary to the rules governing exclusive jurisdiction laid down in Article 16. Since such a clause has been permitted by the authors of the Convention, it may not, if validly agreed, enable one of the parties to repudiate it so as to bring the general rules back into operation. The fact that in examining whether there has been valid consent, recourse must be had to a strict interpretation may not, if there is such consent, be put forward as a ground for challenging the binding force of the agreement on jurisdiction.

9.The third paragraph of Article 17 remains to be interpreted.

It is arguable, and has been argued, that this provision contemplates the case in which a unilateral jurisdiction clause provides that only one of the parties is to be subject to it whilst the other party may waive it and thus bring into operation the general rules on jurisdiction laid down in the Convention. If that interpretation were correct, the third paragraph of Article 17 would have nothing to do with this case and would not be applicable to it. However, it is difficult to see what purpose is served by a provision which restores to the party which has ‘the advantage’ the benefit of rules of general application which, by definition, it has not waived by contract.

Therefore, in my view, the third paragraph of Article 17 applies to a clause which, although inserted exclusively in the interests of only one of the contracting parties, is none the less, as in this case, bilateral in nature or to a unilateral clause stipulating that proceedings brought by that contracting party must be brought in a court which is expressly designated. The third paragraph of Article 17 confers on the party which is ‘at an advantage’ the right to waive its advantage in order to bring into operation the general rules on jurisdiction.

So construed, the third paragraph of Article 17 constitutes a derogation from the principle of the equality of the contracting parties. Moreover, besides the jurisdiction conferred by agreement, it introduces one or more alternative jurisdictions, which detracts from legal certainty, an aim of both the Brussels Convention and the clause conferring jurisdiction. For those two reasons, it must be regarded as an exception to the contractual rule for which the first paragraph of Article 17 makes provision and, as such, must be interpreted strictly.

The parties may expressly state in the contract that the clause conferring jurisdiction was agreed upon in the interests of only one of them. This would greatly facilitate the court's task with regard to the application of the third paragraph of Article 17.

However, that was not done in this case. The court must therefore look at the contract to see whether there is an exclusive interest of that kind. Since the third paragraph of Article 17 must be strictly construed, the existence of an exclusive interest cannot be presumed. Nor can it be automatically inferred from objective evidence, since it is a question of interpreting the intention of the parties. Consequently, the fact that the clause confers jurisdiction on the court of the domicile of one of the contracting parties is a factor which may — and must — be taken into account by the national court when determining the intention of the parties. However, it is not the decisive factor. Other factors, such as the manner in which the law applicable to the contract is currently applied by the court which is designated, may show that the clause is in the interests of both parties.

I therefore suggest that the Court should answer the question referred to it for a preliminary ruling as follows:

(1)Agreements conferring jurisdiction which are validly concluded in accordance with the first paragraph of Article 17 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters are just as binding on the contracting parties as the general rules for conferring jurisdiction laid down in Articles 2 to 15 of the Convention in the absence of such agreements.

(2)The third paragraph of Article 17 of the Convention must be interpreted as meaning that, where such an agreement has been concluded for the exclusive benefit of one of the contracting parties, that party retains the right to waive that advantage and to institute proceedings in any other court which has jurisdiction by virtue of the aforesaid general rules.

(3)It is for the national court to determine, having regard to the circumstances of the case before it and to the terms of the contract, whether or not a clause conferring jurisdiction has been agreed upon for the exclusive benefit of one of the parties. The fact that the clause confers jurisdiction on the court of the domicile of one of the parties is a factor whose significance must be assessed by that court.

*1 Translated from the French.