Judgment — ECLI:EU:C:1999:213
Date: 1999-04-29
Language of the case: French
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Enforcement
Concepts: General
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

summary 
one: the competent court (indicated for each 
Contracting State in Article 32 of the Con­
vention) decides upon application by the inter­
ested party, without delay and without hearing 
the other party. 3 3 The rights of the defence of 
the party against whom enforcement is sought 
are safeguarded, however, as there is provi­
sion for a hearing to be held at a later date if 
the respondent lodges an appeal within one 
or two months of service of the measure 
granting enforcement (depending on the 
addressee's State of domicile). 3 4 Such an appeal 
may be based, inter alia, on the fact that the 
decision is not yet enforceable or is the sub­
ject of an appeal in the State of origin or does 
not fall within the scope of the Convention. 3 5 
The debtor can also effectively raise objec­
tions on the ground of lack of interest on the 
part of the creditor in bringing proceedings 
because of events arising after the judgment 
was given (for example, evidence that the debt 
to which the foreign judgment relates has 
been discharged). 3 6 However, the substance 
of the judgment to be enforced or the proce­
dure on the basis of which the judgment was 
reached may be reviewed only to the extent 
provided for in Articles 27 and 28 (see point 
16 below). 
16. Although the method of lodging the appli­
cation for enforcement or recognition (such 
as the information it must contain or the 
number of copies to be submitted) is deter­
mined by the procedural law of the State 
addressed, the Convention requires the pro­
duction of certain documents, in particular an 
31 — For example, under English law, authorisation is needed to 
obtain a writ of execution if six years have elapsed since the 
delivery of a judgment [see Rules of the Supreme Court 
(Rev.), Ord. 46, r. 2; see S. O'Malley and A. Layton, Euro­
pean Civil Practice, London, 1989, p. 744, footnote 20]. 
32 — See Droz (op. cit. in footnote 22 above), p. 351. According 
to O'Malley and Layton (op. cit. in footnote 31 above, at 
p. 744), the date on which the foreign judgment must be 
enforceable is that on which the court from which enforce­
ment is sought issues its writ. 
33 — Such an arrangement is obviously designed to permit 'the 
element of surprise which is necessary in an enforcement 
procedure if the respondent is not to nave the opportunity 
of withdrawing his assets from any measure of enforcement' 
(sec the Jcnard Report, cited in footnote 30 above, p. 50). 
However, a party who has obtained judgment in his favour 
in a Contracting State, being a judgment for which an order 
for enforcement under Article 31 of the Convention may be 
issued in another Contracting State, is prevented from making 
an application to a court in that other State for a judgment 
against the other party in the same terms as the judgment 
delivered in the first State, even if such ordinary proceed­
ings may be simpler and less costly, from the procedural 
point of view, than the recognition procedure (see Case 
42/76 De Wolf v Cox [1976] ECR 1759). 
34 — If an appeal is lodged, or in any case during the time speci­
fied for doing so, any decision authorising enforcement docs 
not permit the applicant to commence measures of enforce­
ment against the property of the debtor other than the pro­
tective measures for which the legislation of the State in 
which enforcement is sought provides (see Articles 33 to 39 
of the Convention). If the application for enforcement is 
refused, the applicant may appeal to the court designated in 
Article 40 of the Convention, before which both parties will 
be called to state their case. 
35 — See the Jenard Report (cited in footnote 30 above), p. 51, and 
the Schlosser Report (cited in footnote 12 above), p. 134. 
36 — See the Jcnard Report (cited in footnote 30 above), p. 51, 
according to which 'such grounds are admissible in enforce­
ment proceedings', and Oberlandesgericht, Munich, Order 
N o 25 W 1937/79 of 30 November 1979 [(Digest of case-law 
relating to the European Communities, D Series, I-34-B 4), 
quashing the enforcement order on the grounds of the par­
tial extinction of a pecuniary obligation arising from an 
Italian judgment]. 
I - 2553 
OPINION OF MR LA PERGOLA — CASE C-267/97 
authenticated copy of the foreign judgment 
'which satisfies the conditions necessary to 
establish its authenticity' and, in the case of a 
judgment given in default, the document which 
establishes that the party in default was served 
with the document instituting the proceed­
ings (see Article 46). 
Under Article 47(1) of the Convention, a pro­
vision which applies only to applications for 
enforcement, the applicant must also produce 
documents which establish that (i) the judg­
ment is enforceable according to the law of 
the State of origin and (ii) has been served on 
the other party in order to give him the 
opportunity to comply voluntarily. 37 It need 
hardly be pointed out that the provision in 
question, by requiring proof of the enforce­
ability of the foreign judgment — which may 
be deduced from the enforcement order or 
other references in the same measure, 38 or 
else from separate documents, and in par­
ticular from a comparison of the date of the 
judgment, the date of service and the time 
allowed for lodging an appeal — is clearly 
linked to the first paragraph of Article 31 of 
the Convention (see point 14 above). 
17. If the foreign judgment of which the 
applicant seeks recognition is only provision­
ally enforceable and an appeal is lodged, the 
court of the State in which recognition is 
sought may stay the proceedings (see Article 
30 of the Convention), where appropriate 
after having first ascertained that the grounds 
for refusal set out in Articles 27 and 28 (see 
point 16 above) do not apply. Similarly, under 
Article 38 of the Convention, if the enforce­
able foreign judgment is the subject of an 
appeal in the State of origin (or if the time for 
lodging such an appeal has not yet expired), 
the court of the State in which an objection 
has been lodged may (a) stay the proceedings, 
upon application by the appellant, or (b) con­
firm the enforcement order, even of its own 
motion, but make it conditional on the provi­
sion of such security as it shall determine. 
18. Recognition and enforcement of the for­
eign judgment may be refused (or, if granted, 
revoked by the ruling on the appeal) only for 
37 — It will be observed that the failure to produce the documents 
required by Articles 46 and 47 does not necessarily lead to 
the refusal of recognition or enforcement but makes it nec­
essary to stay the proceedings and allow the applicant time 
to produce them. Only if the documents presented are insuf­
ficient to allow the court to form an opinion can the court 
declare the application inadmissible (see the Jenard Report, 
cited in footnote 30 above, p. 50). 
38 — See the Jenard Report (cited in footnote 30 above), p. 55. If 
the enforceability of the judgment is not unambiguously evi­
dent from its content, the court in the State addressed may 
interpret it in the light of its knowledge of the legislation of 
the State of origin [and possibly refuse to grant enforcement; 
see Oberlandesgericht, Stuttgart, Order No. 5 W 9/76 of 
19 May 1976 (Digest of case-law relating to the European 
Communities, D Series, I-47-B 1), which rejected the pro­
visional enforceability of a French divorce decree only in so 
far as it ordered the husband to pay alimony to his former 
wife]. 
I - 2554 
COURSIER ν FORTIS BANK 
one of the reasons specified in Articles 27 and 
28 of the Convention, 3 9 that is to say if 
(i) recognition (or enforcement) is contrary to 
public policy in the State in which recogni­
tion is sought; (ii) the rights of the defence of 
a respondent who has not entered an appear­
ance are infringed (failure to serve the docu­
ment which instituted the proceedings in suf­
ficient time); (iii) the judgment is irreconcilable 
with a ruling given in a dispute between the 
same parties in the State in which recognition 
is sought; (iv) the court of the State of origin 
has decided a preliminary question concerning 
certain matters lying outside the scope of the 
Convention in a way that conflicts with a 
rule of private international law of the State 
in which recognition is sought; 4 0 (v) the judg­
ment is irreconcilable with an earlier judg­
ment given in a non-contracting State 
involving the same cause of action and between 
the same parties, provided that this latter 
judgment fulfils the conditions necessary for 
its recognition in the State addressed (Arti­
cle 27); (vi) the judgment conflicts with spe­
cial or binding provisions regarding jurisdic­
tion (for example, in matters relating to 
insurance and consumer contracts) or rules of 
exclusive jurisdiction contained in the Con­
vention; and (vii) recognition or enforcement 
is prohibited under a previous convention 
concluded by the State addressed with a third 
State in which the respondent was domiciled 
or normally resident when the judgment was 
delivered, if the jurisdiction of the court of 
the State of origin was based solely on one of 
the 'anomalous' rules of jurisdiction listed in 
the second paragraph of Article 3 of the Con­
vention (Article 28). 
19. In particular, under no circumstances may 
a foreign judgment be reviewed as to its 
substance (see Articles 29 and 34 of the Con­
vention): even if the court of the State 
addressed considers that a point of fact or of 
law has been wrongly decided by the court of 
origin, or if the defendant in the foreign pro­
ceedings does not enter an appearance, that 
court cannot refuse recognition or enforce­
ment, substituting its own discretion for that 
of the foreign court. 4 1 This prohibition, which 
is an expression of the respect and confidence 
which the legal system of the State addressed 
vests in the juridical sovereignty of the State 
of origin 4 2 and which is accompanied by an 
almost total prohibition 4 3 on reviewing the 
jurisdiction of the original court, constitutes, 
in my view, the central principle of the entire 
Convention. 
20. Finally, as to the precise scope of the 
effects of the 'naturalised' 44 foreign judg-
39 — But see point 14 above for the further ground for refusing 
enforcement — implicitly foreseen in the first paragraph of 
Article 31 and the first indent of Article 47 of the Conven­
tion — consisting in the lack of enforceability of the foreign 
judgment at the time when application is made. 
40 — The status or legal capacity of natural persons, rights in 
property arising out of a matrimonial relationship, wills and 
succession. Recognition or enforcement cannot be refused, 
however, if the application of the rules of private interna­
tional law of the State addressed would have led to the same 
result as that reached in the foreign judgment [see indent 4 
of Article 27 of the Convention]. 
41 — See the Jenard Report (cited in footnote 30 above), p. 46. 
42 — See J. Beauchard and C. Houssa, La procédure (¡'exequatur, 
in Les Conventions de Bruxelles et de la Haye en matière 
civile et commerciale (edited by G. de Levai), Brussels, 1994, 
p. 55, especially p. 57. 
43 — Apart from the exceptions laid down in the first paragraph 
of Article 28 of the Convention (see point 16 above). 
44 — This felicitous expression is from P. Bellet, Reconnaissance et 
exécution des décisions en vertu de la Convention du 27 sep­
tembre 1968, in Revue trimestrielle de droit européen, 1975, 
p. 32, in particular p. 41. 
I - 2555 
OPINION OF MR LA PERGOLA — CASE C-267/97 
ment, the Court has stated, on the basis of 
the Jenard Report, 4 5 that in principle a for­
eign judgment should not be accorded greater 
authority and effectiveness than it would have 
in the State of origin (the so-called extension 
of effects theory). 4 6 Some academic writers, 
however, add a caveat, which received authori­
tative approval from Advocate General 
Darmon in the case of Hoffmann ν Krieg to 
which I have referred: a foreign judgment 
cannot have greater effects in the State in 
which enforcement is sought than those of 
similar national judgments (the so-called 
equivalence of effects theory). 4 7 
Judgments in bankruptcy cases are outside the 
scope of the Convention 
21. In the light of the characteristics of the 
system of reciprocal recognition of judgments 
established by the Convention, which I have 
described above (see points 10 to 20), it is 
easier, in my view, to understand the reasons 
that led Mr Coursier to adopt the position 
described earlier (see point 5) in challenging 
the enforcement order in the main proceed­
ings. As stated in the order for reference, the 
judgment falls within the scope of the Con­
vention and as such is capable of 
enforcement-at least in theory, without refer­
ence to the solution to be adopted in the indi­
vidual case. By contrast, the judgment termi­
nating the appellant's court-supervised 
liquidation for lack of sufficient assets, which 
was delivered on 16 June 1994 by the Tri­
bunal de Commerce, Briey, cannot enjoy auto­
matic recognition under Luxembourg law by 
virtue of Article 26, as it turns on a matter 
that lies outside the scope of the Convention 
('bankruptcy, proceedings relating to the 
winding-up of insolvent companies or other 
legal persons, judicial arrangements, composi­
tions and analogous proceedings': see 
indent (2) of the second paragraph of 
Article 1). 
As we know, the exclusion of insolvency pro­
ceedings from the scope of the Convention 
was due historically to what at the time 
appeared to be the insurmountable difficulty 
of arriving at a solution acceptable to all 
Member States on a matter as complex as 
45 — Op. cit. in footnote 30 above. 
46 — 'A foreign judgment which has been recognised by virtue of 
Article 26 of the Convention must in principle have the 
same effects in the State in which enforcement is sought as 
it does in the State in which the judgment was given' [see 
Case 145/86 (cited in footnote 8 above), in which the Court 
ruled that a (German) judgment ordering the husband to 
make maintenance payments to the wife — which judgment 
remained enforceable in the State of origin (where a subse­
quent Netherlands divorce decree had not been recognised) 
and into which the enforcement formula had been inserted 
in the State addressed (the Netherlands), under Article 31 of 
the Convention, upon application by the beneficiary — must 
not continue to be enforced, despite the granting of an 
enforcement order, when it ceases to be enforceable for rea­
sons which lie outside the scope of the Convention (i. e. the 
lapsing of the husband's obligation to make maintenance 
payments as a result of the dissolution of the marital rela­
tionship, decreed in the State addressed; it will be recalled 
that under indent (1) of the second paragraph of Article 1, 
the status of natural persons is one of the matters to which 
the Convention does not apply). The Court also found that 
the judgment ordering a person to make maintenance pay­
ments and the judgment pronouncing the divorce of the 
spouses were irreconcilable within the meaning of Arti­
cle 27(3) of the Convention]. See G. de Levai, Une harmoni­
sation des procédures d'exécution dans l'Union européenne 
est-elle concevable?, in Seizure and Overindebtedness in the 
European Union (ed. G. de Levai), The Hague, 1997, p. 595, 
especially p. 606. 
47 — See Droz (op. cit. in footnote 22 above), p. 280, and 
Gaudemet-Tallon (op. cit. in footnote 19 above), pp. 228-229. 
According to Advocate General Darmon, the latter 'limita­
tion is founded on the need to harmonise interpretations and 
the desirability of preventing excessive recourse to the public 
policy exception' (see the Opinion delivered on 9 July 1987 
in Case 145/86, cited in footnote 8 above, [1987] ECR 654, 
especially p. 657). In more general terms, the Advocate Gen­
eral warned against the risk of a distorted application of the 
scheme of the Convention, causing the legal system of the 
State of origin to take precedence over that of the State of 
execution, and hence to 'subordinate if not negate' the latter 
(ibid., p. 658). 
I - 2556 
COURSIER ν FORTIS BANK 
bankruptcy. In the light of this difficulty, and 
in order not to delay unduly the conclusion 
of the Convention, the committee of national 
experts appointed by the Council considered 
it advisable to 'excise' the matter in question 
from the draft convention. Separate negotia­
tions were begun in parallel with a view to 
concluding a separate convention relating 
solely to bankruptcy, the scope of which 
would have had to 'dovetail almost com­
pletely' with that of the Convention. 4 8 More­
over, as the Court of Justice has long since 
made clear, this exclusion relates to all pro­
ceedings based, under the various laws of the 
Contracting States, on cessation of payments, 
insolvency or lack of creditworthiness of the 
debtor, which involve the intervention of the 
courts culminating in compulsory collective 
liquidation of assets or simply in judicial 
supervision. Moreover, 'it is necessary, if deci­
sions relating to bankruptcy and winding-up 
are to be excluded from the scope of the 
Convention, that they must derive directly 
from the bankruptcy or winding-up and be 
closely connected with the proceedings for 
the liquidation of assets or supervision by the 
court.' 4 9 
It therefore seems indisputable to me that the 
judgment terminating Mr Coursier's court-. 
supervised liquidation — which derives 
direcdy from the judgment opening the insol­
vency proceedings and constitutes the culmi­
nation of those proceedings — cannot be 
relied upon by the debtor to block Fortis' 
claim for satisfaction of its rights as creditor. 
In other words, the Convention works solely 
to the disadvantage of the applicant in these 
proceedings, exposing him to the risk of 
attachment of his income despite his immu­
nity from enforcement under the French legal 
system, in which both of the judgments rel­
evant to the main proceedings originated. As 
the Jenard Report 5 0 states, 'pending the con­
clusion of the separate Convention covering 
bankruptcy, proceedings arising directly from 
bankruptcy will be governed by the legal rules 
currently in force, or by the conventions 
which already exist between certain Con­
tracting States'. 
22. France and Luxembourg are not bound 
by any bilateral or multilateral convention 
on jurisdiction and the recognition and 
enforcement of judgments in bankruptcy 
48 — Sec the Schlosser Report (cited in footnote 12 above), p. 90, 
the Commission Opinion of 10 December 1981 on the draft 
Convention on bankruptcy, winding-up, arrangements, com­
positions and similar proceedings (OJ 1981 L 391, p. 23), 
L. Daniele, Fallimento e Convenzione di Bruxelles del 1968, 
in La Convenzione giudiziaria di Bruxelles del 1968 e la 
riforma del processo civile italiano, Milan 1985, p. 85, and 
J.-L. Vallens, Le droit européen de la faillite: la Convention 
relative aux procédures d'insolvabilité, in Actualité législa­
tive Dalloz, 1995, p. 217. 
49 — Sec Case 133/78 G our dam v Nadler [1979] ECR 733, para­
graph 4; (emphasis added), in which the Court ruled that the 
judgment of the civil court in France upholding the liqui­
dator's action to make good a deficiency and ordering the 
de facto managers of a commercial company to pay a given 
sum into the assets in bankruptcy lay outside the scope of 
the Convention. I note, incidentally, that judgments on the 
termination of insolvency proceedings, such as the judgment 
of 16 June 1994 of the Tribunal de Commerce, Briey, fall 
within the scope of the Convention on insolvency proceed­
ings signed on 23 November 1995 in Brussels (hereinafter 
'the Bankruptcy Convention'; see footnote 51 below). 50 — Cited in footnote 30 above, p. 12. 
I - 2557 
OPINION OF MR LA PERGOLA — CASE C-267/97 
cases. Moreover, the Bankruptcy Conven­
tion5 1 has not yet entered into force. Arti­
cle 25 of that Convention (entitled 'Recogni­
tion and enforceability of other judgments') 
states in the first paragraph of indent 1 : 'Judg-
ments handed down by a court whose judg­
ment concerning the opening of proceedings 
is recognised [in accordance with the Con­
vention's rules on jurisdiction] and which 
concern the course and closure of insolvency 
proceedings ... shall also be recognised with 
no further formalities. Such judgments shall 
be enforced in accordance with Articles 31 to 
51 of the Convention ..., with the exception 
of Article 34(2)' (emphasis added). 
23. As to the possibility of the judgment of 
16 June 1994 of the Tribunal de Commerce, 
Briey, being recognised in Luxembourg at 
least under the ordinary law, this is obviously 
a matter which the Court may analyse purely 
as an ancillary issue. In order to examine this 
possibility, it would be necessary to interpret 
not the rules of the Convention but national 
law: it therefore falls not only outside the 
scope of the question referred by the national 
court but also outside the jurisdiction of the 
Court of Justice. 
I shall therefore confine myself to recalling 
that, in the order for reference, the Cour 
Supérieure de Justice observed that in prac­
tice — in the light of the 'universalist' approach 
of Luxembourg private international law 
regarding bankruptcy proceedings — the pos­
sibility cannot be excluded that, under certain 
conditions, decisions of foreign courts 
regarding an insolvent debtor's capacity or 
assets may be recognised as having the same 
effects in Luxembourg as they produce in the 
State of origin, irrespective of whether a 
formal order enforcing the foreign decision 
has been granted. According to the national 
court, however, that principle is not appli­
cable to judgments delivered in a country 
whose legal system is based on the opposite 
principle of the 'territoriality and multiple 
nature' of bankruptcy proceedings, as is the 
case of French law. A French judgment deliv­
ered in insolvency proceedings and relied 
upon in Luxembourg can therefore have only 
strictly territorial effects; in the case in point, 
that principle means that the judgment cannot 
prevent the insolvent person's property situ­
ated in the Grand Duchy from being subject 
to individual enforcement proceedings. 52 
51 — The Bankruptcy Convention (see Actualité législative Dalloz, 
1995, p. 239, for the text in French, International Legal Mat­
ters, 1996, p. 1223, for that in English and Riv. dir. internaz. 
priv. process., 1996, p. 661, for that in Italian), which remained 
open for signature until 23 May 1996, was signed by all the 
Member States except the United Kingdom. Under the third 
paragraph of Article 49, it should have entered into force on 
the first day of the sixth month following that of the deposit 
of the instrument of ratification, acceptance or approval by 
the last State to take that step, provided that it had been rati­
fied, accepted or approved by all the Member States of the 
European Union. Like the various unsuccessful drafts that 
preceded it, the Bankruptcy Convention is based on the 
principle of the unity and universality of the bankruptcy 
proceedings, which arc opened in the State in which the 
'centre of a debtor's main interests' is situated. This principle 
is limited, however, by the provision for the opening of sec­
ondary liquidation proceedings with territorial effects in 
other Contracting States in which the main proceedings have 
been recognised (the principle of so-called limited universal­
ity). 
52 — The order for reference does not, however, address the ques­
tion whether or not the Luxembourg court can accord the 
judgment of 16 June 1994 of the Tribunal de Commerce, 
Briey, at least de plano evidential value by treating it as a 
'bare fact' in order to give it indirect or secondary substan­
tial effects, to be determined on the basis of domestic legisla­
tion, including rules of private international law (sec 
G. Cardia, Sentenza civile straniera, in Enciclopedia del 
diritto, Vol. XLI, Milan 1989, p. 1272, especially p. 1275, and 
A. Huet, Nota a Tribunal de première instance de Saint-
Pierre et Miquelon, ordinanza 26 ottobre 1990, PEBSA/ 
Marinoil Service, in Revue de jurisprudence commerciale, 
1991, p. 177, especially p. 179). 
I - 2558 
COURSIER ν FORTIS BANK 
Answer to the question referred in the present 
case 
24. I believe I have now brought into focus 
the precise contours of the problem, for the 
solution of which the national court has 
sought a ruling on interpretation. In my view, 
the question raised by the Cour Supérieure 
de Justice must be answered in the negative, 
for the following reasons. 
25. The case under review does not exhibit 
any special feature that distinguishes it sub­
stantially from others in which the problem 
arises of ensuring the cross-border movement 
of judgments involving property: given the 
inadequacy of the debtor's property in the 
State of origin — ascertained by the court in 
the decision to terminate the court-supervised 
liquidation for lack of sufficient assets — the 
interested party has evaded the order to meet 
his obligations issued in that jurisdiction and 
has therefore been summoned to comply in 
the territory of the State in which enforce­
ment is sought, where by contrast he has 
assets that can be seized. This duty to comply 
exists and, in my opinion, can be relied upon. 
Indeed, the judicial position (including immu­
nity from enforcement) relating to the subse­
quent collective enforcement to which the 
debtor was subject by virtue of his individual 
undertaking in the legal system of origin, the 
effects of which were confined to the national 
territory, does not suggest otherwise. On the 
other hand, by taking up paid employment in 
another Contracting State, Mr Coursier 
incurred the objective risk of losing the pro­
tection afforded to him in France by the 
'shield' of personal immunity. It was doubtful, 
to say the least, whether his legal immunity 
from enforcement proceedings, stemming in 
the jurisdiction of origin from the judgment 
of the Tribunal de Commerce, Briey, could 
automatically be extended from France to the 
host State. 
26. More precisely, the claim adduced by the 
debtor in the main proceedings does not 
appear to me to derive support from either 
the text or the spirit of the Convention. Under 
the simplified system of enforcement estab­
lished by the Convention, the requirement 
that the judgment must be enforceable 
according to the law of the State of origin — 
as provided for in the first paragraph of 
Article 31 and the first indent of Article 47, 
upon which Mr Coursier relies in today's 
proceedings — is justified exclusively by the 
fact that the Convention does not make 
enforcement dependent on the foreign judg­
ment having acquired the force of res judi­
cata. 53 I have already explained how the 
system established by the Convention oper­
ates (see point 11 above). It is true that even 
a judgment that is fully enforceable (whether 
automatically or by virtue of a clause affixed 
by the court), which has been equated to a 
national judgment for the purposes of com­
pulsory execution in another Contracting 
State, may cease to be valid in the jurisdic­
tion of origin as a result of a subsequent 
judgment partially reversing or quashing it. 
53 — As I observed earlier (see point 15), this provision is linked 
to the power of the court of the State addressed to stay any 
appeal procedure or to make enforcement subject to the 
lodging of a guarantee if in the jurisdiction of origin an 
appeal has been made against the 'naturalised' judgment or 
if the time-limit for lodging an appeal has not expired. 
I - 2559 
OPINION OF MR LA PERGOLA — CASE C-267/97 
Under the system established by the Conven­
tion, a case of this kind is catered for by 
stipulating that the host State must automati­
cally recognise the new foreign judgment, 
which can then produce its extinctive effects 
there. 54 However, if the new foreign decision 
with extinctive effects cannot be recognised 
(for example, because the application initi­
ating the proceedings was not properly and 
promptly served on the respondent who failed 
to enter an appearance), Article 31 of the 
Convention will again come into play, in the 
sense that it will invalidate the enforcement 
order or the registration of the judgment sub­
sequently quashed or amended.55 
27. That said, it must be pointed out at once 
that this case undoubtedly differs from the 
one I have just described, and from more than 
one angle: the judgment, which established 
that Fortis had a liquidated claim that had 
fallen due (in that it was not subject to time-
limits or conditions), became final well before 
the action and order for enforcement; nor 
does the obligation arising out of the legally 
recognised debt appear to have been extin­
guished as a result of payment or any another 
reason. The bank's interest in bringing an 
action must therefore be assumed to be 
unchanged (see point 15 above). The Luxem­
bourg court hearing the application for 
enforcement was accordingly justified, when 
examining the legality of the judgment, in 
holding that it exhibited the same 'quality as 
the instrument' for the purposes of enforce­
ment that French law prescribes for all judg­
ments of that type. Therefore, under the legal 
system of the Grand Duchy, the judgment 
was not accorded any 'rights' (for my part, I 
would prefer to speak of 'effects') 'which it 
does not have in the State of origin'. 
Although it is true that in France Fortis would 
be prevented from obtaining compulsory exe­
cution of the claim in question, this stems 
from a distinct measure (the judgment of the 
Tribunal de Commerce, Briey) which relates 
(like the substantive provision on which it 
rests) to a matter outside the scope of the 
Convention — to be precise, bankruptcy and 
similar proceedings — and cannot therefore 
benefit from freedom of movement for the 
purposes of recognition, in this case in Lux­
embourg (see points 21 and 22 above). This 
exclusion stems from the clear and unam­
biguous decision of the Contracting States, 
and in my view there is no doubt that the 
rules defining the substantive scope of the 
Convention take precedence over those which, 
equally within the scope so defined, concern 
the enforceable nature of foreign judgments, 
the execution of which has been sought. Fur­
thermore, Luxembourg legislation does not 
grant extraterritorial validity to the aforemen­
tioned judgment of the French court (see 
point 23 above). That ruling is therefore of 
no relevance to the national court. If it were 
otherwise, and if the arguments of the appli­
cant in the present case were accepted, the 
result would be illogical, as Fortis has cor­
rectly pointed out: the French judgment ter­
minating the court-supervised liquidation, 
while falling outside the substantive scope of 
the Convention, would automatically be 
accorded recognition under Luxembourg law, 
while at the same time enforcement of the 
judgment to which, by contrast, the Conven­
tion is clearly applicable, would be prevented. 
54 — See V. Starace, Sull'estinzione di efficacia, nell'ordinamento di 
origine, della sentenza straniera riconosciuta o resa esecutiva, 
in Riv. dir. intern. priv. proc, 1969, p. 152, especially p. 153. 
55 — Ibid., pp. 154 and 155. According to O'Malley and Layton 
(op. cit. in footnote 31 above, pp. 744-745), the same result 
is achieved — once again through the application of the first 
paragraph of Article 31 of the Convention — if the foreign 
judgment has ceased to be enforceable as a result of pre­
scription (see footnote 31 above). 
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COURSIER ν FOKUS BANK 
28. Permit me to clarify one further point. In 
contrast to the fear expressed by the Com­
mission, the solution proposed in this 
Opinion, which permits the creditor's claim 
to be enforced in the State addressed, does 
not impair the right to equal treatment of 
creditors who have previously participated in 
bankruptcy proceedings that have run their 
course in the State of origin. Other creditors 
who have obtained an enforcement instru­
ment from a court (including a court settle­
ment) or an authentic instrument (see Arti­
cles 50 and 51 of the Convention) — even if 
they have been divested of the right to bring 
individual actions for enforcement in the State 
of origin as a result of a decision of the type 
reached by the Tribunal de Commerce, Briey 
— will be able, subject to their instrument 
being declared enforceable, to intervene in the 
enforcement proceedings initiated by the 
speediest creditor in the State in which enforce­
ment is sought, and thus to participate col­
lectively and on an equal footing in the sub­
sequent distribution of the assets (without 
prejudice to the effects of substantive rules 
regarding preferential claims or granting pref­
erential treatment to the first creditor to seek 
attachment). 5 6 
Conclusions 
F o r the reasons set out above, I p r o p o s e that the C o u r t reply as follows t o the ques­
t ion submit ted for a pre l iminary ruling b y the C o u r Supérieure de Justice: 
A judgment order ing the paymen t of a sum of m o n e y does no t lose the quali ty of 
enforceability, which Article 31 of the Conven t ion o n Jur isdict ion and the Enforce­
men t of Judgments in Civil and Commerc ia l Mat ters requires a judgment to p o s ­
sess in order to be enforced in another Cont rac t ing State, if the pa r ty against w h o m 
enforcement is sought is pe rmanen t ly p ro tec ted in the State of or igin f rom 
individual proceedings for enforcement as a result of another j udgmen t delivered 
in that State in the context of insolvency proceedings wh ich is n o t open to 
recogni t ion in the State in wh ich enforcement is sought either unde r the 
Conven t ion or unde r that State's nat ional law. 
56 — Sec E. Krings, Synthèse. Le droit des saisies dans les États 
membres de l'union européenne, in Seizure and Overindebt-
edness in the European Union (cited in footnote 46 above), 
p. 3, especially pp. 41-44. The author notes that in the legal 
systems of some Contracting States (such as Italy, Greece 
and Belgium) creditors without an enforcement instrument 
are also permitted to intervene in the enforcement proceed­
ings, subject to certain conditions, as a means of safeguarding 
the equality of claims. 
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