Avis juridique important

61977J0043

European Court reports 1977 Page 02175 Greek special edition Page 00691 Portuguese special edition Page 00791 Spanish special edition Page 00679

Summary

CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS - RECOGNITION OR GRANT OF AN ORDER FOR ENFORCEMENT IN ONE CONTRACTING STATE OF A JUDGMENT GIVEN IN ANOTHER CONTRACTING STATE - STAY OF THE PROCEEDINGS FOR RECOGNITION OR ENFORCEMENT - APPEAL LODGED IN THE STATE IN WHICH THE JUDGMENT WAS GIVEN AGAINST THE FOREIGN JUDGMENT - CONCEPT OF ' ORDINARY APPEAL ' WITHIN THE MEANING OF ARTICLES 30 AND 38 OF THE CONVENTION - DIFFERENCES IN THE LEGAL CONCEPTS OF THE VARIOUS CONTRACTING STATES WITH REGARD TO THE DISTINCTION BETWEEN ' ORDINARY ' AND ' EXTRAORDINARY ' APPEALS - DEFINITION OF THE CONCEPT OF ' ORDINARY APPEAL ' SOLELY WITHIN THE FRAMEWORK OF THE CONVENTION - MEANING ( CONVENTION OF 27 SEPTEMBER 1968 , ARTICLES 30 AND 38 )

1 . BECAUSE OF THE DIFFERENCES IN THE LEGAL CONCEPTS OF THE MEMBER STATES WHICH ARE PARTIES TO THE CONVENTION OF 27 SEPTEMBER 1968 WITH REGARD TO THE DISTINCTION BETWEEN ' ORDINARY ' AND ' EXTRAORDINARY ' APPEALS , THE MEANING OF THE CONCEPT OF ' ORDINARY APPEAL ' CANNOT BE DETERMINED BY REFERENCE TO A NATIONAL LEGAL SYSTEM , WHETHER THAT OF THE STATE IN WHICH THE JUDGMENT WAS GIVEN OR THAT OF THE STATE IN WHICH RECOGNITION OR ENFORCEMENT IS SOUGHT . THIS CONCEPT MAY THEREFORE BE DEFINED SOLELY WITHIN THE FRAMEWORK OF THE CONVENTION ITSELF.

Parties

IN CASE 43/77

REFERENCE TO THE COURT UNDER THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BY THE RECHTBANK VAN EERSTE AANLEG ( COURT OF FIRST INSTANCE ) OF THE JUDICIAL DISTRICT OF ANTWERP FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN :

INDUSTRIAL DIAMOND SUPPLIES , A PARTNERSHIP WITH LIMITED LIABILITY HAVING ITS REGISTERED OFFICE IN ANTWERP ,

LUIGI RIVA , A COMMERCIAL REPRESENTATIVE RESIDING IN TURIN ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 30 AND 38 OF THE CONVENTION OF 27 SEPTEMBER 1968 ,

Grounds

1 BY JUDGMENT OF 7 APRIL 1977 , WHICH WAS RECEIVED AT THE COURT ON 18 APRIL 1977 , THE RECHTBANK VAN EERSTE AANLEG ( COURT OF FIRST INSTANCE ), ANTWERP , REFERRED TO THE COURT OF JUSTICE UNDER ARTICLES 2 ( 3 ) AND 3 ( 2 ) OF THE PROTOCOL OF 3 JUNE 1971 TWO QUESTIONS ON THE INTERPRETATION OF THE EXPRESSION ' ORDINARY APPEAL ' USED IN ARTICLES 30 AND 38 OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( HEREINAFTER REFERRED TO AS ' THE CONVENTION ' ).

2 THE FILE SHOWS THAT INDUSTRIAL DIAMOND SUPPLIES , THE PLAINTIFF IN THE MAIN ACTION , HAVING ITS REGISTERED OFFICE IN ANTWERP , WAS ORDERED BY THE TRIBUNALE CIVILE E PENALE ( CIVIL AND CRIMINAL COURT ), TURIN , TO PAY TO LUIGI RIVA , THE DEFENDANT IN THE MAIN ACTION , A COMMERCIAL REPRESENTATIVE RESIDING IN TURIN , THE SUM OF LIT 53 052 980 , AS COMMISSION OWED BY THE PLAINTIFF TO THE DEFENDANT IN THE CONTEXT OF A CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES , TOGETHER WITH INTEREST AND LEGAL COSTS .

3 THE JUDGMENT , WHICH WAS GIVEN ON 23 SEPTEMBER 1976 BY THE TURIN COURT ON APPEAL FROM A DECISION OF THE PRETORE OF THE SAME CITY , IS AT PRESENT ENFORCEABLE .

4 ON 25 NOVEMBER 1976 MR RIVA OBTAINED FROM THE ANTWERP COURT A JUDGMENT AUTHORIZING THE ENFORCEMENT IN BELGIUM OF THE JUDGMENT OF THE TURIN COURT , IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 31 ET SEQ . OF THE CONVENTION .

5 ON 15 DECEMBER 1976 , INDUSTRIAL DIAMOND SUPPLIES LODGED AN APPEAL AGAINST THE ORDER FOR ENFORCEMENT BEFORE THE ANTWERP COURT UNDER ARTICLES 36 AND 37 OF THE CONVENTION .

6 ON 27 DECEMBER 1976 INDUSTRIAL DIAMOND SUPPLIES LODGED AN APPEAL IN CASSATION BEFORE THE ITALIAN CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF APPEAL ) AGAINST THE JUDGMENT GIVEN ON APPEAL BY THE TURIN COURT .

7 IT IS NOT IN DISPUTE THAT THAT APPEAL DOES NOT HAVE THE EFFECT OF SUSPENDING THE ENFORCEABILITY OF THE JUDGMENT GIVEN BY THE TURIN COURT .

8 IT IS ALSO ESTABLISHED THAT INDUSTRIAL DIAMOND SUPPLIES HAS NOT SOUGHT A STAY OF EXECUTION IN ITALY .

9 INDUSTRIAL DIAMOND SUPPLIES REQUESTED THE ANTWERP COURT PRINCIPALLY TO SUSPEND THE PROCEEDINGS RELATING TO THE ENFORCEMENT OF THE JUDGMENT GIVEN BY THE TURIN COURT UNTIL FINAL JUDGMENT HAS BEEN DELIVERED BETWEEN THE PARTIES IN ITALY .

10 SO AS TO BE ABLE TO REACH A DECISION ON THAT REQUEST , THE ANTWERP COURT SUBMITTED TO THE COURT OF JUSTICE THE FOLLOWING TWO QUESTIONS ON THE INTERPRETATION OF ARTICLES 30 AND 38 OF THE CONVENTION : ' 1 . WHAT APPEALS ARE REGARDED AS ' ORDINARY ' APPEALS IN ARTICLES 30 AND 38 OF THE CONVENTION OF 27 SEPTEMBER 1968 OR , IN OTHER WORDS , TO WHAT JUDGMENTS ARE ARTICLES 30 AND 38 OF THE CONVENTION APPLICABLE? OR 2 . IS THE NATURE OF THE APPEAL LODGED AGAINST THE JUDGMENT IN THE STATE IN WHICH THAT JUDGMENT WAS GIVEN TO BE DETERMINED SOLELY IN ACCORDANCE WITH THE LAW OF THAT STATE? '

11 THESE QUESTIONS ASK IN SUBSTANCE WHETHER THE EXPRESSION ' ORDINARY APPEAL ' USED IN ARTICLES 30 AND 38 OF THE CONVENTION MUST BE UNDERSTOOD AS A REFERENCE TO NATIONAL LAW OR AS AN INDEPENDENT CONCEPT , THE INTERPRETATION OF WHICH MUST BE SOUGHT WITHIN THE CONVENTION ITSELF .

12 IN THE SECOND CASE , THE QUESTIONS SUBMITTED BY THE COURT ASK WHAT THE MEANING OF THAT EXPRESSION IS WITHIN THE CONTEXT OF THE CONVENTION .

13 DURING THE PROCEDURE THE VIEW WAS EXPRESSED THAT ARTICLE 30 OF THE CONVENTION , WHICH RELATES TO THE RECOGNITION AND NOT THE ENFORCEMENT OF JUDGMENTS , IS NOT RELEVANT TO THE PROCEEDINGS AND THAT THE INTERPRETATION REQUESTED CONCERNS ONLY THE MEANING OF THE EXPRESSION ' ORDINARY APPEAL ' WITHIN THE CONTEXT OF ARTICLE 38 , WHICH RELATES TO ENFORCEMENT .

14 THERE IS NO NEED TO EXAMINE THIS QUESTION , ESPECIALLY SINCE THE CONNEXITY OF THE PROVISIONS OF TITLE III OF THE CONVENTION MAKE IT NECESSARY TO INTERPRET THE EXPRESSION IN QUESTION IN THE TWO ABOVEMENTIONED ARTICLES IN THE SAME WAY .

THE NATURE OF THE EXPRESSION ' ORDINARY APPEAL ' AS A REFERENCE TO NATIONAL LAW OR AS AN INDEPENDENT CONCEPT

15 UNDER ARTICLE 30 OF THE CONVENTION , ' A COURT OF A CONTRACTING STATE IN WHICH RECOGNITION IS SOUGHT OF A JUDGMENT GIVEN IN ANOTHER CONTRACTING STATE MAY STAY THE PROCEEDINGS IF AN ORDINARY APPEAL AGAINST THE JUDGMENT HAS BEEN LODGED ' .

16 UNDER THE FIRST PARAGRAPH OF ARTICLE 38 , ' THE COURT WITH WHICH THE APPEAL UNDER THE FIRST PARAGRAPH OF ARTICLE 37 IS LODGED MAY , ON THE APPLICATION OF THE APPELLANT , STAY THE PROCEEDINGS IF AN ORDINARY APPEAL HAS BEEN LODGED AGAINST THE JUDGMENT IN THE STATE IN WHICH THAT JUDGMENT WAS GIVEN OR IF THE TIME FOR SUCH AN APPEAL HAS NOT YET EXPIRED ; IN THE LATTER CASE , THE COURT MAY SPECIFY THE TIME WITHIN WHICH SUCH AN APPEAL IS TO BE LODGED ' .

17 ACCORDING TO INDUSTRIAL DIAMOND SUPPLIES , IT IS NECESSARY TO CLASSIFY ANY APPEAL CONSIDERED TO BE AN ORDINARY APPEAL IN THE CONTRACTING STATE IN WHICH THE JUDGMENT THE RECOGNITION OR ENFORCEMENT OF WHICH IS SOUGHT WAS GIVEN AS AN ' ORDINARY APPEAL ' WITHIN THE MEANING OF THE ABOVEMENTIONED PROVISIONS .

18 UNDER THE LAW OF THE ITALIAN REPUBLIC , THE STATE IN WHICH THE JUDGMENT IN QUESTION WAS GIVEN , THERE IS NO DOUBT THAT AN APPEAL IN CASSATION ( RICORSO PER CASSAZIONE ) MUST IN FACT BE CONSIDERED AS AN ORDINARY APPEAL .

19 THIS VIEW HAS BEEN SUPPORTED BY THE GOVERNMENT OF THE UNITED KINGDOM AND BY THE COMMISSION , WHICH BOTH AGREE THAT THE NATURE OF AN APPEAL FOR THE PURPOSES OF ARTICLES 30 AND 38 MUST BE DETERMINED BY REFERENCE TO THE NATIONAL LAW OF THE CONTRACTING STATE IN WHICH THE ORIGINAL JUDGMENT WAS GIVEN .

20 MR RIVA , WITHOUT CONTESTING THE FACT THAT IN ITALY AN APPEAL IN CASSATION IS CONSIDERED TO BE AN ORDINARY APPEAL , TAKES THE VIEW THAT IN ANY CASE A JUDGMENT WHICH IS ENFORCEABLE IN ITALY MUST ALSO BE CONSIDERED AS ENFORCEABLE IN BELGIUM SO LONG AS THE ENFORCEABILITY OF THAT JUDGMENT HAS NOT BEEN SUSPENDED IN THE STATE IN WHICH THE JUDGMENT WAS GIVEN .

21 FINALLY , IT IS NECESSARY TO NOTE THAT THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY EXPRESSED THE OPINION THAT THE EXPRESSION ' ORDINARY APPEAL ' USED IN ARTICLES 30 AND 38 MUST BE INTERPRETED WITHIN THE CONTEXT OF THE CONVENTION ITSELF , REGARDLESS OF THE CLASSIFICATION OF APPEALS BY THE NATIONAL LAW OF THE STATE IN WHICH THE JUDGMENT WAS GIVEN .

22 IT FOLLOWS FROM A COMPARISON OF THE LEGAL CONCEPTS OF THE VARIOUS MEMBER STATES OF THE COMMUNITY THAT ALTHOUGH IN SOME STATES THE DISTINCTION BETWEEN ' ORDINARY ' AND ' EXTRAORDINARY ' APPEALS IS BASED ON THE LAW ITSELF , IN OTHER LEGAL SYSTEMS THE CLASSIFICATION IS MADE PRIMARILY OR EVEN PURELY IN THE WORKS OF LEARNED AUTHORS WHILE IN A THIRD GROUP OF STATES THIS DISTINCTION IS COMPLETELY UNKNOWN .

23 IT IS ESTABLISHED MOREOVER THAT IN THE LEGAL SYSTEMS IN WHICH THE DISTINCTION BETWEEN ' ORDINARY ' AND ' EXTRAORDINARY ' APPEALS IS ACKNOWLEDGED BY LEGISLATION OR BY LEARNED AUTHORS , THE CLASSIFICATION OF THE VARIOUS APPEALS FOR THE PURPOSES OF THAT DISTINCTION GIVES RISE TO VARYING CLASSIFICATIONS .

24 IT SEEMS THEREFORE THAT IF THE CONCEPT OF ' ORDINARY APPEAL ' WERE INTERPRETED BY REFERENCE TO A NATIONAL LEGAL SYSTEM , WHETHER THE LEGAL SYSTEM OF THE STATE IN WHICH THE JUDGMENT WAS GIVEN OR THAT OF THE STATE IN WHICH ENFORCEMENT OR RECOGNITION IS SOUGHT , IT WOULD IN CERTAIN CASES BE IMPOSSIBLE TO CLASSIFY A SPECIFIC APPEAL WITH THE REQUIRED DEGREE OF CERTAINTY FOR THE PURPOSES OF ARTICLES 30 AND 38 OF THE CONVENTION .

25 MOREOVER , REFERENCE TO A PARTICULAR NATIONAL LEGAL SYSTEM MIGHT PERHAPS OBLIGE THE COURT REQUIRED TO MAKE A DECISION UNDER ARTICLES 30 AND 38 OF THE CONVENTION TO CLASSIFY APPEALS OF THE SAME TYPE INCONSISTENTLY ACCORDING TO WHETHER THEY BELONGED TO THE LEGAL SYSTEM OF ONE OR OTHER OF THE CONTRACTING STATES .

26 THE EFFECT OF THE APPLICATION OF THAT CRITERION OF INTERPRETATION WOULD THEREFORE BE TO CREATE EVEN GREATER LEGAL UNCERTAINTY SINCE ARTICLE 38 REQUIRES THE COURT BEFORE WHICH AN ORDER FOR ENFORCEMENT OF THE JUDGMENT IS SOUGHT TO TAKE INTO CONSIDERATION NOT ONLY APPEALS WHICH HAVE BEEN LODGED AT PRESENT BUT IN ADDITION APPEALS WHICH MAY BE LODGED WITHIN SPECIFIC PERIODS .

27 IT FOLLOWS FROM THESE CONSIDERATIONS THAT THE INTERPRETATION OF THE CONCEPT OF ' ORDINARY APPEAL ' MAY ONLY BE USEFULLY SOUGHT WITHIN THE FRAMEWORK OF THE CONVENTION ITSELF .

28 IT IS THEREFORE NECESSARY TO REPLY TO THE NATIONAL COURT THAT THE EXPRESSION ' ORDINARY APPEAL ' WITHIN THE MEANING OF ARTICLES 30 AND 38 OF THE CONVENTION MUST BE DETERMINED SOLELY WITHIN THE FRAMEWORK OF THE SYSTEM OF THE CONVENTION ITSELF AND NOT ACCORDING TO THE LAW EITHER OF THE STATE IN WHICH THE JUDGMENT WAS GIVEN OR OF THE STATE IN WHICH THE RECOGNITION OR ENFORCEMENT OF THAT JUDGMENT IS SOUGHT .

Decision on costs

COSTS

43 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

44 SINCE THE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE RECHTBANK VAN EERSTE AANLEG OF THE JUDICIAL DISTRICT OF ANTWERP BY JUDGMENT OF 7 APRIL 1977 , HEREBY RULES :

1 . THE EXPRESSION ' ORDINARY APPEAL ' WITHIN THE MEANING OF ARTICLES 30 AND 38 OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS MUST BE DEFINED SOLELY WITHIN THE FRAMEWORK OF THE SYSTEM OF THE CONVENTION ITSELF AND NOT ACCORDING TO THE LAW EITHER OF THE STATE IN WHICH THE JUDGMENT WAS GIVEN OR OF THE STATE IN WHICH RECOGNITION OF ENFORCEMENT OF THAT JUDGMENT IS SOUGHT .