Summary
In a case concerning a claim for damages arising from the failure to perform an obligation to make an offer to form an associazione temporanea di imprese for the award of a contract under a competitive bidding in Italy, the place of performance of the obligation in question pursuant to Article 5(1)(a) of Regulation (EC) No 44/2001 shall be determined in light of the interpretation given by the EC Court of Justice to the similar provision laid down by Article 5 of the Brussels Convention of 27 September 1968. Accordingly, the place of performance of the obligation in question shall be determined under the law that governs said obligation in accordance with the conflict-of-Iaw rules of the court seized. Pursuant to Article 4 of the Rome Convention of 19 June 1980 on the Law Applicable to Contractual Obligations - which is referred to by Article 57 of Law No 218/1995 - Italian law applies since the rebuttable presumption laid down by paragraph 2 of said provision in favour of the place where the party who is to effect the performance which is characteristic of the contract (i.e., in this case, the French defendant) has its central administration is overruled by the fact that the contract is more closely connected with Italy pursuant to paragraph 5 of said provision. In fact, the aforesaid offer should have been made by the defendant in Italy and the associazione temporanea d’imprese that was supposed to be formed should also have operated here. Therefore, Italian courts have jurisdiction since, pursuant to Article 1182(1) of Civil Code, the place of performance of the obligation in question is located in Italy and rhe offer object of the dispute could only be made to the public body that launched the competitive bidding.