OPINION OF MR MAYRAS — CASE 33/78 SOMAFER v SAAR-FERNGAS

Mr President

Members of the Court,

I —. Etablissements Somafer, Uckange, Lorraine, submitted a tender pursuant to an invitation to tender by the Ministry of the Interior of the Saarland to carry out certain demolition work on the perimeter of the Rochling-Burbach factories.

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.

III —. In the event of jurisdiction relating to the operations of a branch, agency or other establishment having to be determined independently, the national court wishes to know by its second question what criteria of interpretation should be applied to the expressions branch and agency with reference to capacity to take independent decisions (inter alia to enter into contracts) and also to the extent of the outward manifestation. It must be observed that the question does not mention establishment, but it appears to me necessary to consider it.

IV —. I think that having regard to the special nature of the jurisdiction under Article 5 (5) appearances should be disregarded and the realities considered and it is for third parties who wish to rely on this exception to adduce evidence that the entity which they wish to bring before the court was in fact subject to the control and direction of the parent company and that in particular the operation giving rise to the dispute was within the competence of the branch or agency and that there was sufficient connexion with that operation.

My opinion is that the Court should hold that in civil and commercial matters for the purposes of Article 5 (5) of the Brussels Convention of 1968 it is sufficient that the entity which is referred to therein has entered directly into the contract out of which the claim arises.

1 Translated from the French.