Case Law: Besix

8 Colum. J. Eur. L. 493 (2002)

Johan Verlinden.

Case C-256/00. S.A. Besix N. V. v. Wasserreinigungsbau Alfred Kretzschmar GMBH & Co. K.G. (WABAG) (E.C.J. Feb. 19, 2002) (not yet reported).”

This judgment of the European Court of Justice (ECJ) is a response to preliminary questions posed by the “Hof van Beroep” (Court of Appeal) of Brussels, Belgium. At issue was the interpretation of Article 5(1) of the European Convention on-Jurisdiction and Enforcement of Judgements in Civil and Commercial matters’. The Convention determines which court will have jurisdiction over a case with links to several national legal systems within the EU. The Convention is applicable if the defendant is domiciled in a member state. The general principle of the Convention can be found in Article 2. A person domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state. The Convention itself provides for exceptions to this rule. Article 5 gives jurisdiction to courts other than those of the country of domicile of the defendant. Article 5 (1) of the Convention states that a person domiciled in a contracting state may, in matters relating to the contract, be sued before the courts of the place of performance of the obligation in question. Article 5(1) raises two questions: one regarding the meaning of “the obligation in question” and the other regarding the meaning of the “place of performance.” In this case, the ECJ was confronted with the interpretation of the latter question. Article 5 must be read as an exception to the general rule of Article 2, and cannot be given an interpretation that extends beyond what was intended by the Convention.


The Ministry of Mining and Energy of Cameroon planned to carry out a water supply project. WABAG, part of the German group Deutsche Babcock, and Besix agreed to cooperate and to tender together. If they were assigned the project they agreed to carry out the works together. Both parties agreed not to cooperate with any other party. Their contract contained an exclusivity and restraint of competition clause. The clause was a typical example of an obligation not to do.

The Ministry examined various proposals. Plafog, also a member of the German group Deutsche Babcock, had submitted a proposal for the project together with a Finnish firm. The Plafog-group was assigned a part of the project, but the WASAG-Besix group was not. Besix felt that the exclusivity- and non-competition clause had been violated and demanded compensation before the Commercial Court of Brussels. The judge assumed jurisdiction based on Article 5(1) of the Convention. He considered the “obligation not to do” an accessory to the obligation to cooperate, which, according to applicable Belgian law, had to be performed in Belgium. Besix, however, was not awarded any compensation and appealed. The Court of Appeal of Brussels posed a preliminary question to the ECJ on the interpretation of Article 5(1) of the Convention.