II —

The first question basically asks whether the concepts of ‘branch, agency or other establishment’ must be interpreted by reference to national law or on the contrary independently. 1. In favour of reference to national law for determining place of the court having jurisdiction it may be said that in general there is every advantage in applying the law of the State before whose courts the matter comes or the law applicable to the main action: it is important for questions of jurisdiction to be resolved speedily. It is always easier for a court to apply its own law; further almost all the criteria for jurisdiction referred to in the Convention are connected with concepts which are found used in the national law of the Member States for purposes other than the determination of junsdiction. As regards the concepts of domicile of natural persons or the seat of companies or legal persons, in respect of which after all the concepts of Article 5 (5) represent only a breakdown or subclass, the Convention refers expressly to the application of the internal law of the court seized of the matter (first paragraph of Article 52) or its rules of private international law (Article 53). An independent interpretation of the concepts referred to in Article 5 (5) would not, strictly, be in accord with ‘the simplication of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals’ which is the objective assigned to the Convention by Article 220 of the EEC Treaty; on the contrary it would have been more expeditious for Saar-Ferngas to bring the action against Somafer before the court of the place where the head office of that undertaking is situate to obtain a judgment against it which would have been directly enforceable in France. Moreover it may be doubted whether the authors of the Convention intended to give a common and independent definition of the branch, agency or establishment. Such a definition would risk being overtaken by the development of the national laws and case-law. The very fact that they used the word ‘other’, which is a type of ‘residuary’ class to cover all other cases, would confirm that they have not sought to give a precise definition at least to the concept of establishment. Such an objective which would come within the sphere of uniform legislation would be alien to the Convention. Finally the Court decided in the judgment of 6 October 1976, Tessili ([1976] ECR 1473) in connexion with the interpretation of the Convention in general that in certain circumstances the words and concepts used by the Convention (that case was concerned with the concept used in Article 5 of ‘place of performance of the obligation in question’) must be regarded as referring to the substantive rules of the law applicable under the rules of conflict of laws of the court before which the matter is first brought. 2. In favour of the independent nature of the words in Article 5 (5) the following considerations on the other hand may be put: Even if the national law of the court before which the matter is brought or if the private international law applicable to the main action make jurisdiction dependent on criteria more or less identical to those referred to in Article 5 (5) of the Convention, it is not likely that the current interpretation of those criteria by the national court is appropriate to cases falling under the Convention. In the judgment in De Bloos of 6 October 1976 ([1976] ECR 1497) the Court itself began to interpret the concepts referred to in Article 5 (5) uniformly and independently in seeking to define the concept of ‘branch’. This precedent does not appear to me completely decisive in itself for the definition — not a full one — given in that judgment is purely negative and was arrived at in relation to the internal relationship between the grantee and grantor of an exclusive sales concession. A little later on 14 October 1976 the Court in the case of the Lufttransportunternehmen ([1976] ECR 1541) ruled that the concept ‘civil and commercial matters’ used in Article 1 of the Convention cannot be interpreted solely in the light of the division of jurisdiction between the various types of courts existing in certain Member States and that the concept in question must therefore be regarded as independent and must be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems. On 14 July 1977 in Joined Cases Bavaria Fluggesellschaft Schwabe and Germania Bedarfsluftfahrt ([1977] ECR 1517) the Court ruled that this interpretation was based on the desire to ensure in relation to Community law that the Contracting States and parties concerned have equal and uniform rights and duties under the Brussels Convention and that the principle of legal certainty in the Community legal system and the objectives of the Convention in accordance with Article 220 of the EEC Treaty, which is at its origin, require in all Member States a uniform application of the legal concepts and legal classifications developed by the Court in the context of the Convention. In the case of Industrial Diamond Supplies the Court ruled on 22 November 1977 ([1977] ECR 2175) that if the concept of ‘ordinary appeal’ were interpreted by reference to a national system, whether the legal system of the State in which the judgment was given or that of the State in which recognition or enforcement is sought, it would in certain cases be impossible to classify a specific appeal with the required degree of certainty for the purposes of Articles 30 and 38 of the Convention and that the interpretation of the concept of ‘ordinary appeal’ may usefully be sought only within the framework of the convention itself. The Court adopted the same attitude in the judgment of 21 June 1978 in Case 150/77 Bertrand v Ott [1978] ECR 1431 in relation to the ‘sale of goods on instalment credit terms’. On the basis of these precedents I think that the jurisdiction for disputes ‘arising out of the operation of a branch, agency or other establishment’ must be determined independently, that is to say having regard to the objectives and the scheme of the Convention of 1968 and the general principles of the national legal systems. This ‘independent’ interpretation must be based on the laws and case-law of the Member States which are parties to the Convention as regards the consequences, from the point of view of the forum, of the concepts of branch, agency or other establishment and on the national case-law on the forum for subsidiary establishments of legal persons provided for in certain bilateral Conventions entered into between Member States before the Brussels Convention. These bilateral Conventions recognize the criterion of attachment either on the basis of direct jurisdiction or on the basis of indirect jurisdiction by means of choice of domicile. It might be said that the Brussels Convention has ‘codified’ and multinationalized the bilateral provisions without in so doing unifying the case-law of the various States relating to their application. The immediate predecessor of Article 5 (5) of the Brussels Convention thus appears to be Article 4 (1) (d) of the German-Netherlands Convention of 30 August 1962 which reads: ‘The courts of the State where the decision has been given are recognized as having jurisdiction for the purposes of the present Convention: … if in the State where the decision has been given the defendant has been served at his place of business or at a branch in relation to disputes arising out of the operation of the said establishment or branch’. It must be observed that Article 5 (5) of the Brussels Convention provides a criterion of connexion on the basis of direct jurisdiction for the purposes of recognition and enforcement and a presumption of choice of domicile. Still following this line of reasoning I shall invite you to answer Question 1 (b) also in the negative for recourse in a case before a national court to the law applicable in the main action would finally lead to reference to national laws which are probably different.