In case of cross-border dispute within the European Union, in the absence of contractual provision, the rules concerning court jurisdiction in civil and commercial matters are now determined by Council Regulation No 44/2001 of 22 December 2000 which replaces the Brussels Convention of 27 September 1968 on the same subject. This regulation applies to legal proceedings carried out and authentic deeds received after the 1st March 2002 (Article 66, 1). This regulation provides for in Article 5: “ A person domiciled in a Member State may, in another Member State, be sued: 1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: – in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, – in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided, (c) if subparagraph (b) does not apply then subparagraph (a) applies;” The Council Regulation No 44/2001 establishes a unique place of performance for all obligations resulting from a contract of service, regardless of their regim or their qualification in the applicable national law. And this, in order to avoid the dispersion of proceedings resulting from the same contract which existed before this regulation came into force. Indeed, before this regulation came into force, a commercial agent could have to initiate, on the one hand, a proceeding in the country of the principal to claim his contract termination indemnity, the payment of such compensation being considered as an “independant obligation”, and, on the other hand, a proceeding in his own country to claim outstanding commissions, the payment of such commissions being a contractual obligation. In a case aiming to obtain the payment of a client compensation and damages following a wrongful termination of a commercial agent agreement initiated by a French commercial agent against his Portuguese principal before the commercial court of Paris, on the basis of Article 5-1 of the Coucil Regulation No 44/2001, the Supreme Court (“Cour de cassation”) had quashed the appeal decision which had juged that the payment of a contract termination indemnity was an independent obligation and, thus, the Portuguese courts had jurisdiction to handle this contract termination indemnity claim of the French commercial agent. Under a ruling of September 2010, the Court of appeal of Versailles applied this solution to a case opposing a commercial agent located in France and his principal located in Spain.
AUMANS AVOCATS (formerly FOUSSAT Avocats & DEROULEZ Avocats), Paris Lyon Marseille Brussels
