C-139/80

LUISE TROST, Aachen,

plaintiff and respondent in the appeal on a point of law,

on the interpretation of the words "agency" and "other establishment" within the meaning of Article 5 (5) of the Convention of 27 September 1968,

T H E C O U R T (Third Chamber)

composed of: J. Mertens de Wilmars, President, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

entered into a contract with the German the jurisdiction of that court. Trost undertaking Hermann Bey (hereinafter contended that it had jurisdiction under referred to as "Bey"), a furniture agency Article 5 (5) of the Convention of (Möbelagentur), under which Bey 27 September 1968 on Jurisdiction and undertook to set up a sales network in the Enforcement of Judgments in Civil the Federal Republic for Blanckaert's and Commercial Matters (hereinafter furniture. Bey represented several referred to as "the Convention"). Belgian furniture manufacturers under similar conditions. The Landgericht Aachen refused to accept that argument and declined Bey, in its turn, signed the following jurisdiction. However, the Oberlandes- contract on 30 November 1975 with the gericht Köln [Higher Regional Court, Trost undertaking (hereinafter referred Cologne] held that Bey is in fact an to as "Trost"), the plaintiff in the main agency or other establishment of action : Blanckaert and that its role as Verkaufs- leiter [sales manager] in the relaltionship "On behalf of Blanckaert & Willems of between Blanckaert and Trost provided Eeklo, Belgium, I hereby authorize you grounds for the jurisdicton of the Land- to represent the aforesaid undertaking in gericht Aachen in the dispute. the Rhine and Ruhr, Eifel and South Westphalia area. Hearing the appeal on a point of law, the Bundesgerichtshof found that Bey You will be working as the direct rep- belongs to the specific category of resentative of Blanckaert & Willems. “Vermittlungsvertreter" (business nego- You will also receive from them a tiator) within the class of "Handels- commission of 5%. vertreter" (commercial agents) within the meaning of Article 84 et seq. of the However, I would ask you kindly to German Commercial Code [Handels- send all orders exclusively to my address gesetzbuch], which states that: in Aachen. "(1) A commercial agent is one who, as Please be understanding about this. The an independent businessman, is reason is that as I am answerable for charged on a permanent basis with you, I must be kept informed of each negotiating business on behalf of order. another undertaking (the principal) Naturally, your name will appear on all or with concluding transactions in copies as representative. the name of the latter. An independent businessman means I look forward to a profitable association one who is basically free to with you . . . " . organize his own work and hours of work. In December 1976 Blanckaert, having discovered that Trost was representing (2) Any person who, without being various Belgian furniture manufacturers, independent within the meaning of terminated its contract with Trost. paragraph (1), is responsible on a Shortly afterwards it also terminated its permanent basis for negotiating contract with Bey. business for a principal or for concluding transactions in the Trost brought an action against latter's name, is considered as an Blanckaert in the Landgericht [Regional employee. Court] Aachen for payment of out- standing commission and agent's (3) The principal may also be a adjustment fees. Blanckaert challenged commercial agent."

Being of the opinion that the dispute Does a dispute between the raised questions concerning the inter- undertaking and the agency of pretation of the Convention, the Bundes- other establishment concerning gerichtshof referred the following ques- the latter's entitlement to tions of the Court of Justice for a pre- commission and payment by way liminary ruling by an order of 21 March of adjustment on termination of 1980: the agency agreement fall within 1. Is a commercial agent [Handelsver- the concept of "a dispute arising treter] who is a business negotiator out of the operations of . . . [an] [Vermittlungsvertreter] within the agency or other establishement" meaning of Article 84 et seq. of the within the meaning of Article 5 Commercial Code [Handelsgesetz- (5) of the Convention? buch] to be considered as an "agency" or "other establishment" The order making the reference was within the meaning of Article 5 (5) of received at the Registry of the Court on the European Communities' 11 June 1980. Convention on Jurdisdiction and the The plaintiff in the main action (Trost) Enforcement of Judgments in Civil and the Commission submitted written and Commercial Matters of 27 observations as provided for by Article 5 September 1968 (hereinafter referred of the Protocol of 3 June 1971, in to as "the Convention")? accordance with Article 20 of the 2. If the answer to Question 1 is in the Protocol on the Statute of the Court of affirmative. Justice of the EEC. (a) Is there a dispute "arising out of the operations" of an agency or On hearing the report of the Judge- other establishment within the Rapporteur and the views of the meaning of Article 5 (5) of the Advocate General the Court decided to Convention if the agency or other open the oral procedure without any establishment, acting under the preparatory inquiry. authority of the undertaking in By an order dated 29 October 1980 respect of which it operates as made under Article 95 of the Rules of commercial agent, appoints a Procedure the Court assigned the case to third person as an additional the Third Chamber. commercial agent for the under- taking, accepts against payment of a commission the documents II — O b s e r v a t i o n s submitted relating to transactions negotiated u n d e r A r t i c l e 20 of t h e by the third person and transmits P r o t o c o l on t h e S t a t u t e of them to the undertaking, and t h e C o u r t of J u s t i c e of t h e instructs and supervises the third EEC person A — Observations of the plaintiff in the and main action (Trost) if a dispute arises out of the First question activities of that third person in According to the plaintiff in the main his capacity as a commercial agent action both Bey and herself operated as between the undertaking and commercial agents (Handelsvertreter), himself concerning his entitlement and more specifically as business nego- to commission and payment by tiators (Vermittlungsvertreter), on behalf way of adjustment on termination of Blanckaert and should therefore be of the agency agreement? considered as independent businessmen (b) If the answer to Question 2 (a) is (selbständige Gewerbetreibende) within in the negative: the meaning of Article 84 (1) of the

— Bey depends on instructions from Blanckaert not only as regards the The plaintiff in the main action is of the opinion that in the present case the issue selection and the identity of turns on Bey's activities, because that contracting parties, the conditions of undertaking entered into a contract on sale and the completion of behalf of Blanckaert which is binding on transactions, but also as regards the the Belgian undertaking. Anything done extent of the interests of the principal by Trost to market Blanckaert's products undertaking for which it is thus has considerable influence on Bey's responsible and the duty of the business. The plaintiff is of the opinion commercial agent to give an account that the words "disputes arising out of of his actions. the operations" should be understood as covering not only those arising out of — In a letter of 14 October 1975 sent to selling operations but also those resulting the plaintiff's son Bey stated that it from Bey's other operations and was to be considered as a sales activities carried out by that undertaking manager (Verkaufsleiter) for for Blanckaert in return for payment of a Blanckaert. special commission.

— The letter of 30 November 1975 sent by Bey to Trost shows that Bey Third question entered into the commercial agency contract with Trost at the request The jurisdiction of the Landgericht and in the name of Blanckaert. Aachen also derives from the fact that the concept of "a dispute arising out of the operations of [an] . . . agency or The plaintiff in the main action (Trost) other establishment" referred to in rejects Blanckaert's argument that there Article 5 (5) of the Convention likewise can be no question of a relationship of covers disputes between the entrepreneur dependency between Blanckaert and Bey and the agency itself, that is to say, in because Bey has been an independent this case, the disputes concerning Trost's commercial agent for approximately 20 claims for compensation and commission years. It is quite possible for an and not only the disputes between

The Commission's view is that this case First question does present, however, a number of features foreign to the normal sphere of activities of a commercial agent. Thus The Commission observes, first, that Bey did not merely conclude a according to the judgment of the Court commercial agency contract with Trost of 22 November 1978 (Case 33/78 in Blanckaert's name, but it also had the Somafer [1978] ECR 2183), the concepts orders collected by Trost sent to it for referred to in Article 5 (5) of the transmission to Blanckaert. A certain Convention require independent inter­ amount of supervision was thereby pretation. According to that judgment, clearly being exercised by Bey over the concept of "branch, agency or other Trosťs activities, in Blanckaert's name, establishment" implies " a place of and that supervision was recompensed by business which has the appearance of Blanckaert's payment of a special permanency, such as the extension of a commission. Those facts do not, parent body, has a management and is however, make it apparent that Bey was materially equipped to negotiate business also responsible for stipulating the with third parties so that the latter, conditions governing the transactions although knowing that there will if which were negotiated by Trost and the necessary be a legal link with the parent performance of a supervisory role does body, the head office of which is abroad, not suffice to make of Bey, within the do not have to deal directly with such meaning of the definition given by the parent body but may transact business at Court in the Soma/er judgment, a "place the place of business constituting the of business" of Blanckaert "which has extension". the appearance of permanency".

employed in Article 5 (5) of the considers that its reply to the second one Convention comprise the same essential may be brief. characteristics, so that the concept of an agency covers, in the same way as a In its opinion the claims advanced by branch, a component which is not legally Trost do not relate to a dispute arising independent of the parent body. In "out of the operations" of Bey, because consequence the concept of an "agency" the rights on which it relies depend on does not extend to intermediary agencies conditions which do not result from the which are legally independent in so far commercial activities of that concern, but as those agencies manifestly appear as from the business operations of such in the course of business.

established. mercial agent because in that case the business is actually transacted by the Question 2 (b) in the order making the principal himself. reference proceeds on the assumption that the operations of Trost, as a In the present instance the reply to the commercial agent, amounted, on her question to what extent Trost is entitled part, to the creation of an agency or to payment of commission by Blanckaert other establishment of Blanckaert, and depends on whether or not the latter with regard to that situation the Bundes went on to carry through the gerichtshof asks whether the claims put transactions in which Trost served as forward by the commercial agent with intermediary, as provided for by Article regard to the principal establishment 87 (a) of the German Commercial Code, constitute a dispute as described by with purchasers of Blanckaerťs furniture.

Second question parent body. That condition is not ulfilled in the case of the rights relied In view of the reply which it proposes upon on its own account by the for the first question the Commission establishment or agency as against the

2 According to that provision, which derogates from the general rule of forum domicilii set out in Article 2 of the Convention, a defendant domiciled in a Contracting State may be sued in another Contracting State "as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts of the place in which the branch, agency or other establishment is situated".

BLANCKAERT & WILLEMS v TROST

3 Blanckaert & Willems, a Belgian furniture manufacturer and the defendant in the main action (hereinafter referred to as "Blanckaert") has according to its own statements had a business association since 1960 with the German undertaking Hermann Bey (hereinafter referred to as "Bey"), a furniture agency (Möbelagentur), which it made responsible for the establishment in the Federal Republic of Germany of a sales network for the furniture which Blanckaert manufactured. In performance of that obligation Bey, acting on behalf of Blanckaert, entered into a commercial agency with Trost, the plaintiff in the main action, for the Rhine and Ruhr, Eifel and South Westphalia area. Under the terms of that contract Trost was to work as the direct representative of Blanckaert and receive from the latter a commission of 5 %. The contract stipulated that Trost was to transmit the orders she obtained for Blanckaert through Bey at Aachen. On any such orders transmitted to it through Bey Blanckaert would pay the latter the extra commission customarily given to commercial agents who are responsible for supervising other commençai agents of an undertaking.

7 Considering therefore that the dispute raised questions concerning the interpretation of the Convention the Bundesgerichtshof referred two questions to the Court of Justice for a preliminary ruling on the interpret- ation of Article 5 (5) of that Convention.

First question

8 The first question asks in substance whether a commercial agent [Handelsvertreter] who is a business negotiator [Vermittlungsvertreter] within the meaning of Article 84 et seq. of the German Commercial Code is to be considered as an "agency" or "other establishment" within the meaning of Article 5 (5) of the Convention.

9 As the national court correctly observes, the Court stated in its judgment of 6 October 1976 (Case 14/76 De Bloos v Bouyer [1976] ECR 1497) that one of the essential characteristics of the concept of a branch or agency is the fact of being subject of the direction and control of the parent body.

10 The Court did not have occasion in that decision to identify the factors enabling it to be determined whether or not an undertaking or other business concern is subject to the direction and control of a parent body, because the main dispute concerned the relationship between the grantor and the grantee of an exclusive sales concession, and the national court had stated that the grantee was not subject to either the direction or the control of the grantor.

1 1 Furthermore, in its judgment of 22 November 1978 (Case 33/78 Somafer [1978] ECR 2183), the Court stated that "the concept of a 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

Second question

1 4 The second question is asked only if the reply to the first question should be in the affirmative. A reply to it is therefore not required.

JUDGMENT OF 18. 3. 1981 — CASE 139/80

Costs

15 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings before the national court, the decision on costs is a matter for that court.

On those grounds,