## Facts

- An Italian company (Industrie Tessili Italiana Como) and a German company (Dunlop A.G.) negotiated in Italy for the supply of women’s ski suits.
- Dunlop sent an order from Germany that included general purchasing conditions with a jurisdiction clause designating the court in Hanau am Main (Germany).
- The seller manufactured and shipped 310 ski suits to Dunlop using a carrier appointed by Dunlop.
- The seller’s invoice included sales conditions with a conflicting jurisdiction clause designating the court in Como (Italy).
- Dunlop claimed the goods were defective and sued in the Landgericht Hanau seeking annulment of the contract.
- The seller challenged the German court’s territorial jurisdiction; the Landgericht rejected the objection.
- On appeal, the Oberlandesgericht Frankfurt am Main referred a question for a preliminary ruling on interpretation of Article 5(1) of the 1968 Brussels Convention (special jurisdiction “place of performance of the obligation in question”).

## Issues

1. Under Article 5(1) of the Brussels Convention, how must the “place of performance of the obligation in question” be determined for purposes of jurisdiction: by an autonomous Convention definition or by reference to the law governing the obligation as identified through the forum’s conflict-of-laws rules?

## Decision

- The Court of Justice answered that the “place of performance of the obligation in question” in Article 5(1) is determined under the law governing that obligation, as designated by the conflict-of-laws rules of the court seised.
- The Court did not decide which national court had jurisdiction on the facts; it provided only the interpretive rule for the referring court to apply.

## Legal Principles

- Article 5(1) “place of performance” is not fixed by a single, uniform Convention-wide definition; it depends on the governing substantive law of the obligation at issue.
- The court seised must (1) apply its own conflict-of-laws rules to identify the law governing the relevant contractual obligation and (2) use that governing law to locate the place of performance; that place anchors special jurisdiction under Article 5(1).
- Whether Convention concepts require autonomous interpretation or reference to national law must be assessed provision by provision to ensure the Convention’s effectiveness and coherence with its objectives.
- New Member States obliged to accede to the relevant convention instruments may submit observations in interpretive proceedings concerning those instruments.

## Conclusion

The Court held that jurisdiction under Article 5(1) for “the place of performance of the obligation in question” turns on the place of performance as defined by the substantive law governing the obligation, identified through the forum court’s conflict-of-laws rules, and remitted application of that method to the national court.


Industrie Tessili Italiana Como v. Dunlop A.G., Case 12/76, [1976] E.C.R. 1473 (C.J.E.C. 1976)