Parties

In Case C‑167/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Hof van Cassatie (Belgium), made by decision of 10 April 2008, received at the Court on 21 April 2008, in the proceedings

VO Sembodja BV,

Parc Healthcare International Ltd

Omnipol Ltd,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, M. Ilešič, A. Borg Barthet, E. Levits (Rapporteur) and J.-J. Kasel, Judges,

Advocate General: P. Mengozzi,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 12 February 2009,

after considering the observations submitted on behalf of:

–Draka NK Cables Ltd, AB Sandvik International, VO Sembodja BV and Parc Healthcare International Ltd, by P. Lefèbvre, advocaat, A. Hansebout, conseil, and C. Ronse, avocat,

–Omnipol Ltd, by H. Geinger, H. Verhulst and R. Portocarero, advocaten,

–the Belgian Government, by T. Materne, acting as Agent,

–the Slovak Government, by J. Čorba, acting as Agent,

–the Commission of the European Communities, by A.-M. Rouchaud-Joët and R. Troosters, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Legal context

‘The decision on the application for a declaration of enforceability may be appealed against by either party.’

5. The first paragraph of Article 36 of the Brussels Convention provided:

‘If enforcement is authorised, the party against whom enforcement is sought may appeal against the decision within one month of service thereof.’

‘If the application for enforcement is refused, the applicant may appeal:

…

The party against whom enforcement is sought shall be summoned to appear before the appellate court …’

National legislation

‘However, creditors may exercise all the rights and claims of the debtor, with the exception of those that are exclusively connected to the person.’

10. The Rechtbank van eerste aanleg te Brussel authorised enforcement of that judgment on the basis of Article 38 et seq. of Regulation No 44/2001.

11. The applicants brought a joint appeal against that authorisation of enforcement by means of an ‘indirect claim’ under Article 1166 of the Belgian Civil Code, in conjunction with Article 43(1) of Regulation No 44/2001, with a view to preventing enforcement of the judgment of the Gerechtshof te Amsterdam.

12. On 14 November 2005, the Rechtbank van eerste aanleg te Brussel declared that appeal inadmissible, holding that, although Article 1166 of the Belgian Civil Code confers on creditors the right to exercise all rights and claims of their debtor, a creditor cannot be regarded as a ‘party’ within the meaning of Article 43(1) of Regulation No 44/2001. The enforcement procedure under that regulation, it ruled, provides for a complete and independent system of appeals which national legislatures may not supplement.

13. The applicants brought an appeal in cassation against that decision. They submit that a creditor who exercises, by means of an indirect claim, the rights of a debtor must be regarded as a ‘party’ within the meaning of Article 43(1) of Regulation No 44/2001, since the debtor was a party in the foreign proceedings.

14. The Hof van Cassatie (Court of Cassation) noted that, although in the matter of appeals Regulation No 44/2001 has the same aim as the Brussels Convention, the wording of Article 43(1) of the regulation departs from the wording of the corresponding provision in that convention.

15. Article 36 of the Brussels Convention provided that the party against whom enforcement of the judgment in the main proceedings was sought could appeal against the decision authorising that enforcement, whereas Article 43(1) of Regulation No 44/2001 provides that the decision on the application for a declaration of enforceability may be appealed against by ‘either party’.

17. It is in those circumstances that the Hof van Cassatie decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is a creditor who pursues a claim in the name and for the account of his debtor a party within the meaning of Article 43(1) of Regulation No 44/2001, that is, a party who can lodge an appeal against a decision on the request for a declaration of enforceability, even if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration?’

The question referred for a preliminary ruling

18. By its question, the national court asks, in essence, whether Article 43(1) of Regulation No 44/2001 must be interpreted as meaning that a creditor of a debtor may lodge an appeal against a decision on the request for a declaration of enforceability even if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability.

19. In order to answer that question, it should be borne in mind, first, that, according to settled case-law, the provisions of Regulation No 44/2001 must be interpreted independently, by reference to its scheme and purpose (see, inter alia, Case C‑103/05 Reisch Montage [2006] ECR I‑6827, paragraph 29, and Case C-372/07 Hassett and Doherty [2008] ECR I-0000, paragraph 17).

21. In that connection, the national court notes that the wording of Article 43(1) of Regulation No 44/2001 departs from that of Article 36 of the Brussels Convention.

22. If the system established by the Brussels Convention is considered in relation to that established by Regulation No 44/2001, it becomes apparent, however, that the wording of Article 43(1) of that regulation must be compared, not with that of the first paragraph of Article 36 of that convention, but rather with the combined wording of Articles 36 and 40 thereof.

24. It follows that the change in wording to Article 43(1) of Regulation No 44/2001, compared with the Brussels Convention, has not resulted in a substantive change, and cannot mean that the Court’s interpretation of the articles of the Brussels Convention relating to enforcement of decisions may not be applied to the corresponding articles of Regulation No 44/2001.

25. In that connection, the Court has first of all held that the principle of legal certainty in the Community legal system and the objectives of the Brussels Convention in accordance with Article 220 EC, which is at its origin, require in all Member States a uniform application of the legal concepts and legal classifications developed by the Court in the context of that convention (see Joined Cases 9/77 and 10/77 Bavaria Fluggesellschaft and Germanair [1977] ECR 1517, paragraph 4, and Case C-432/93 SISRO [1995] ECR I-2269, paragraph 39).

26. Subsequently, the Court has made clear that the principal objective of the Brussels Convention is to simplify the procedures in the State where enforcement is sought by laying down a very summary, simple and rapid enforcement procedure, whilst at the same time giving the party against whom enforcement is sought an opportunity to bring an appeal (see, to that effect, Case C-414/92 Solo Kleinmotoren [1994] ECR I-2237, paragraph 20, and Case C-260/97 Unibank [1999] ECR I‑3715, paragraph 14).

27. That procedure constitutes an autonomous and complete system, independent of the legal systems of the Contracting States, including the matter of appeals (see Deutsche Genossenschaftsbank , paragraphs 16 and 17). The rules relating to it must be interpreted strictly (see SISRO , paragraphs 35 and 39). It follows that Article 36 of the Brussels Convention excludes procedures whereby interested third parties may challenge an enforcement order under domestic law (see Deutsche Genossenschaftsbank , paragraph 17, and Case C‑172/91 Sonntag [1993] ECR I-1963, paragraph 33).

28. The scope of the right conferred by Article 1166 of the Belgian Civil Code on the applicants, which at the hearing the Belgian Government stated could not be placed on the same footing as the debtor, is therefore irrelevant.

29. Lastly, the Court has pointed out that, since the Brussels Convention merely regulates the procedure for obtaining an order for the enforcement of foreign enforceable instruments and does not deal with execution itself, which continues to be governed by the domestic law of the court in which execution is sought (see Case 145/86 Hoffmann [1988] ECR 645, paragraph 27), interested third parties may contest execution by means of the procedures available to them under the law of the State in which execution is levied (see Deutsche Genossenschaftsbank , paragraph 18).

30. Those observations are equally applicable to Regulation No 44/2001. They are borne out by recital 18 in the preamble to that regulation, which refers to the redress procedures available against a declaration of enforceability. According to that recital, such a possibility is expressly made available only to the applicant and the defendant.

31. It follows from all of the foregoing that Article 43(1) of Regulation No 44/2001 must be interpreted as meaning that a creditor of a debtor cannot lodge an appeal against a decision on a request for a declaration of enforceability if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability.

Costs

32. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules:

Article 43(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a creditor of a debtor cannot lodge an appeal against a decision on a request for a declaration of enforceability if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability.