5.

It should be noted at the outset that it is not clear whether an answer to the question posed in these terms will necessarily determine the issue of jurisdiction in the circumstances of the present case. In the first place, it cannot be assumed, for reasons which I will give later, that, if Article 5(1) applies, the court in Bonneville may exercise jurisdiction over TMCS's claim against Handte Germany as the court for the place of performance of the obligation in question. If on the other hand Article 5(1) is not applicable, it cannot be assumed that Handte Germany must be sued in the courts for the place at which it has its seat, in accordance with Article 2 of the Convention. Indeed, there are several other provisions on which the jurisdiction of the French courts (though not necessarily those in Bonneville) might possibly be founded. Those provisions are as follows: a. Article 5(3), which confers jurisdiction in matters relating to tort, delict or quasi-delict on the courts for the place where the harmful event occurred. This Court has construed that provision as conferring on the plaintiff a choice of jurisdiction; he may sue either at the place where the damage occurred or at the place of the event giving rise to it: Case 21/76 Bier v Mines de Potasse d'Alsace [1976] ECR 1735. b. Article 5(5), which provides that, as regards a dispute arising out of the operations of a branch, agency or other establishment, proceedings may be brought in the courts for the place in which the branch, agency or other establishment is situated: see in particular, in relation to this head of jurisdiction, Case 33/78 Somafer v Saar-Ferngas [1978] ECR 2183 and Case 218/86 SAR Schotte v Parfums Rothschild [1987] ECR 4905. In the absence of any information about the legal relationship between Handte Germany and Handte France, it is impossible to say whether the latter might constitute a “branch, agency or other establishment” of the former. c. Article 6(1), under which a person domiciled in a Contracting State may be sued, where he is one of a number of defendants, in the courts for the place where any one of them is domiciled. It may be noted that Handte Germany could be sued in Bonneville under Article 6(1) only if the jurisdiction of the Bonneville court over Handte France were based on Article 2 of the Convention (i. e. if Handte France has its seat there). If, on the other hand, jurisdiction over Handte France Were based solely on Article 5(1) or (3), it would not be possible to sue Handte Germany in Bonneville under Article 6(1), since none of the defendants would be domiciled there. Although the Order for Reference does not state where Handte France is domiciled, it may be noted that there is appended to Handte Germany's observations the judgment of the Cour d'Appel, Chambéry, of 20 March 1989, from which it is clear that Handte Germany argued that Article 6(1) was not applicable on the ground that Handte France was domiciled in Strasbourg. d. Article 6(2), under which a person domiciled in a Contracting State may be sued as a third party in an action on a warranty or guarantee or in any other third party proceedings in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case. TMCS attempted to invoke Article 6(2) in the proceedings before the Cour d'Appel, which did not, however, make any ruling on the point.