Somafer Sa v Saar-Ferngas Ag: ECJ 22 Nov 1978

ECJ 1. The Convention of 27 September 1968 must be interpreted having regard both to its principles and objectives and to its relationship with the treaty. The question whether the words and concepts used in the convention must be regarded as having their own independent meaning and as being thus common to all the contracting states or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought must be so answered as to ensure that the convention is fully effective in achieving the objects which it pursues.
2. 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 of 27 September 1968.
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.
The concept of ‘operations’ comprises :
– 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;
– actions 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.
[1979] 1 CMLR 490, [1978] EUECJ R-33/78, [1978] ECR 2183
Bailii
European
Cited by:
CitedKinnear and Others v Falconfilms Nv and Others QBD 27-Jan-1994
The deceased had died in an accident whilst filming in Spain for the defendants. The plaintiff personal representatives sought damages here, while the defendants denied that the court had jurisdiction under the 1968 Convention, and said that the . .
CitedIn Re N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .

These lists may be incomplete.
Updated: 19 January 2021; Ref: scu.214776