Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The preliminary question which has been referred to you concerns the interpretation of the first sentence of the second paragraph of Article 40 of the Brussels Convention of 27 September 1968, hereinafter referred to as the Convention.

2. A decision must first be made on the admissibility of the case.

3. Let us return to the question referred by the Oberlandesgericht. The Court is asked whether, taking into account certain circumstances, the rule set out in the first sentence of the second paragraph of Article 40 of the Convention may admit of an exception.

4. My views on the matter are thus similar to those expressed by the Commission and by the German Government, and I therefore propose that the question referred to the Court by the Oberlandesgericht Frankfurt am Main should be answered as follows :

1 Translated from the French.

2 Article 34 of the Convention.

3 Article 46 (2) of the Convention.

4 Article 47 (1) of the Convention.

5 Article 48 of the Convention.

6 Official Journal C 59, 1979.

7 Ibid., p. 48.

8 Article 36, first paragraph.

9 Article 40, first paragraph.

10 Article 37, first paragraph and Article 40, second paragraph.

11 Article 37, second paragraph and Article 41.

12 Commentary on Article 34, at p. 50.

13 Commentary on Article 40, at p. 53.