THE CONVENTION WHICH ARE THE SUBJECT OF THE REFERENCE FOR A PRELIMINARY RULING .
THE SECOND AND THIRD QUESTIONS
9IN THE EVENT OF THE WORDS REFERRED TO BEING INTERPRETED INDEPENDENTLY , THE SECOND QUESTION ASKS WHAT CRITERIA APPLY WITH REFERENCE TO THE CAPACITY TO TAKE INDEPENDENT DECISIONS ( INTER ALIA TO ENTER INTO CONTRACTS ) AND ALSO TO THE EXTENT OF THE OUTWARD MANIFESTATION . THE THIRD QUESTION ASKS
' ' ARE THE PRINCIPLES GOVERNING LIABILITY FOR HOLDING ONESELF OUT IN LAW TO OTHERS , I.E . TO THIRD PARTIES , TO BE APPLIED TO THE QUESTIONS WHETHER THERE IS IN FACT A BRANCH OR AGENCY , WITH LEGAL CONSEQUENCES THAT ANYONE WHO CREATES THE APPEARANCE OF SUCH A SITUATION IS TO BE TREATED AS HAVING OPERATED A BRANCH OR AGENCY - AS IS FOR EXAMPLE THE CASE UNDER GERMAN LAW ( CF . ARTICLE 21 OF THE ZIVILPROZESSORDNUNG ( CODE OF CIVIL PROCEDURE ) BAUMBACH , 36TH EDITION NOTE 2 A , STEIN-JONAS , 19TH EDITION , NOTE II 2 ; OBERLANDESGERICHT KOLN NEUE JURISTISCHE WOCHENSCHRIFT 1953 , 1834 , OBERLANDESGERICHT BRESLAU HOCHSTRICHTERLICHE RECHTSPRECHUNG 1939 ( CASE NO 111))?
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10THESE TWO QUESTIONS MUST BE TAKEN TOGETHER .
11HAVING REGARD TO THE FACT THAT THE CONCEPTS REFERRED TO GIVE THE RIGHT TO DEROGATE FROM THE PRINCIPLE OF JURISDICTION OF ARTICLE 2 OF THE CONVENTION THEIR INTERPRETATION MUST SHOW WITHOUT DIFFICULTY THE SPECIAL LINK JUSTIFYING SUCH DEROGATION . SUCH SPECIAL LINK COMPRISES IN THE FIRST PLACE THE MATERIAL SIGNS ENABLING THE EXISTENCE OF THE BRANCH , AGENCY OR OTHER ESTABLISHMENT TO BE EASILY RECOGNIZED AND IN THE SECOND PLACE THE CONNEXION THAT THERE IS BETWEEN THE LOCAL ENTITY AND THE CLAIM DIRECTED AGAINST THE PARENT BODY ESTABLISHED IN ANOTHER CONTRACTING STATE .
12AS REGARDS THE FIRST ISSUE , THE CONCEPT OF BRANCH , AGENCY OR OTHER ESTABLISHMENT IMPLIES A PLACE OF BUSINESS WHICH HAS THE APPEARANCE OF PERMANENCY , SUCH AS THE EXTENSION OF A PARENT BODY , HAS A MANAGEMENT AND IS MATERIALLY EQUIPPED TO NEGOTIATE BUSINESS WITH THIRD PARTIES SO THAT THE LATTER , ALTHOUGH KNOWING THAT THERE WILL IF NECESSARY BE A LEGAL LINK WITH THE PARENT BODY , THE HEAD OFFICE OF WHICH IS ABROAD , DO NOT HAVE TO DEAL DIRECTLY WITH SUCH PARENT BODY BUT MAY TRANSACT BUSINESS AT THE PLACE OF BUSINESS CONSTITUTING THE EXTENSION .
13AS REGARDS THE SECOND ISSUE THE CLAIM IN THE ACTION MUST CONCERN THE OPERATIONS OF THE BRANCH , AGENCY OR OTHER ESTABLISHMENT . THIS CONCEPT OF OPERATIONS COMPRISES ON THE ONE HAND ACTIONS RELATING TO RIGHTS AND CONTRACTUAL OR NON-CONTRACTUAL OBLIGATIONS CONCERNING THE MANAGEMENT PROPERLY SO-CALLED OF THE AGENCY , BRANCH OR OTHER ESTABLISHMENT ITSELF SUCH AS THOSE CONCERNING THE SITUATION OF THE BUILDING WHERE SUCH ENTITY IS ESTABLISHED OR THE LOCAL ENGAGEMENT OF STAFF TO WORK THERE . FURTHER IT ALSO COMPRISES THOSE RELATING TO UNDERTAKINGS WHICH HAVE BEEN ENTERED INTO AT THE ABOVE-MENTIONED PLACE OF BUSINESS IN THE NAME OF THE PARENT BODY AND