Somafer SA v Saar-Ferngas AG.
Date: 1978-11-22
7THEIR FUNCTION IN THE CONTEXT OF THE CONVENTION MUST BE DECIDED IN RELATION TO THE GENERAL RULE CONFERRING JURISDICTION CONTAINED IN ARTICLE 2 ( 1 ) OF THE CONVENTION WHICH STATES ' ' SUBJECT TO THE PROVISIONS OF THIS CONVENTION , PERSONS DOMICILED IN A CONTRACTING STATE SHALL , WHATEVER THEIR NATIONALITY , BE SUED IN THE COURTS OF THAT STATE ' ' . ALTHOUGH ARTICLE 5 MAKES PROVISION IN A NUMBER OF CASES FOR A SPECIAL JURISDICTION , WHICH THE PLAINTIFF MAY CHOOSE , THIS IS BECAUSE OF THE EXISTENCE , IN CERTAIN CLEARLY-DEFINED SITUATIONS , OF A PARTICULARLY CLOSE CONNECTING FACTOR BETWEEN A DISPUTE AND THE COURT WHICH MAY BE CALLED UPON TO HEAR IT , WITH A VIEW TO THE EFFICACIOUS CONDUCT OF THE PROCEEDINGS . MULTIPLICATION OF THE BASES OF JURISDICTION IN ONE AND THE SAME CASE IS NOT LIKELY TO ENCOURAGE LEGAL CERTAINTY AND THE EFFECTIVENESS OF LEGAL PROTECTION THROUGHOUT THE TERRITORY OF THE COMMUNITY AND THEREFORE IT IS IN ACCORD WITH THE OBJECTIVE OF THE CONVENTION TO AVOID A WIDE AND MULTIFARIOUS INTERPRETATION OF THE EXCEPTIONS TO THE GENERAL RULE OF JURISDICTION CONTAINED IN ARTICLE 2 . THIS IS ALL THE MORE SO SINCE IN NATIONAL LAWS OR IN BILATERAL CONVENTIONS THE SIMILAR EXCEPTION IS FREQUENTLY DUE , AS THE UNITED KINGDOM RIGHTLY POINTS OUT IN ITS WRITTEN OBSERVATIONS , TO THE NOTION THAT A NATIONAL STATE SERVES THE INTERESTS OF ITS NATIONALS BY OFFERING THEM AN OPPORTUNITY TO ESCAPE THE JURISDICTION OF A FOREIGN COURT AND THIS CONSIDERATION IS OUT OF PLACE IN THE COMMUNITY CONTEXT , SINCE THE JUSTIFICATION FOR THE EXCEPTIONS CONTAINED IN ARTICLE 5 TO THE GENERAL RULE OF JURISDICTION IN ARTICLE 2 IS SOLELY IN THE INTERESTS OF DUE ADMINISTRATION OF JUSTICE .
8THE SCOPE AND LIMITS OF THE RIGHT GIVEN TO THE PLAINTIFF BY ARTICLE 5 ( 5 ) MUST BE DETERMINED BY THE PARTICULAR FACTS WHICH EITHER IN THE RELATIONS BETWEEN THE PARENT BODY AND ITS BRANCHES , AGENCIES OR OTHER ESTABLISHMENTS OR IN THE RELATIONS BETWEEN ONE OF THE LATTER ENTITIES AND THIRD PARTIES SHOW THE SPECIAL LINK JUSTIFYING , IN DEROGATION FROM ARTICLE 2 , THE OPTION GRANTED TO THE PLAINTIFF . IT IS BY DEFINITION A QUESTION OF FACTORS CONCERNING TWO ENTITIES ESTABLISHED IN DIFFERENT CONTRACTING STATES BUT WHICH IN SPITE OF THIS MUST BE CONSIDERED IN THE SAME WAY , WHETHER FROM THE POINT OF VIEW OF THE PARENT BODY OR OF AN EXTENSION OR EXTENSIONS WHICH THE PARENT BODY HAS ESTABLISHED IN THE OTHER MEMBER STATES OR FROM THAT OF THE THIRD PARTIES WITH WHOM LEGAL RELATIONS ARE CREATED THROUGH SUCH EXTENSIONS . IN THESE CIRCUMSTANCES THE NEED TO ENSURE LEGAL CERTAINTY AND EQUALITY OF RIGHTS AND OBLIGATIONS FOR THE PARTIES AS REGARDS THE POWER TO DEROGATE FROM THE GENERAL JURISDICTION OF ARTICLE 2 REQUIRES AN INDEPENDENT INTERPRETATION , COMMON TO ALL THE CONTRACTING STATES , OF THE CONCEPTS IN ARTICLE 5 ( 5 ) OF THE CONVENTION WHICH ARE THE SUBJECT OF THE REFERENCE FOR A PRELIMINARY RULING .

THE SECOND AND THIRD QUESTIONS
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 WHICH MUST BE PERFORMED IN THE CONTRACTING STATE WHERE THE PLACE OF BUSINESS IS ESTABLISHED AND ALSO ACTIONS CONCERNING NON-CONTRACTUAL OBLIGATIONS ARISING FROM THE ACTIVITIES IN WHICH THE BRANCH , AGENCY OR OTHER ESTABLISHMENT WITHIN THE ABOVE DEFINED MEANING , HAS ENGAGED AT THE PLACE IN WHICH IT IS ESTABLISHED ON BEHALF OF THE PARENT BODY . IT IS IN EACH CASE FOR THE COURT BEFORE WHICH THE MATTER COMES TO FIND THE FACTS WHEREON IT MAY BE ESTABLISHED THAT AN EFFECTIVE PLACE OF BUSINESS EXISTS AND TO DETERMINE THE LEGAL POSITION BY REFERENCE TO THE CONCEPT OF ' ' OPERATIONS ' '  AS ABOVE DEFINED .