Opinion of the Advocate General — ECLI:EU:C:2004:430
Date: 2004-07-13
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction;Brussels Convention of 27 September 1968 - Enforcement
Procedure: Reference for a preliminary ruling
Origin: Denmark

summary of the facts provided by the Højesteret shows that the administrator appointed by the Arrondissementsrechtbank Groningen sent a registered letter of 1 February 1988 which ‘informed’ Mærsk’s lawyer of that order. The appropriate court of the State in which recognition is sought will have to determine whether that registered letter may be deemed to constitute due service of the order. It must be observed that this question must be decided on the basis of the legislation of the State in which judgment was given and of the conventions binding on the two States in question. (52) Therefore the question must be decided by reference to the Netherlands rules on the limitation of liability. Moreover, as the Netherlands Government points out, Article 10 of the Hague Convention, (53) to which the Kingdom of the Netherlands and the Kingdom of Denmark were parties at the material time, provides for the option of sending judicial documents to persons abroad directly by post. The court of the State in which recognition is sought will also have to decide whether service was effected in good time to enable the defendant to arrange for his defence. It must also be observed that, when considering this question, the court may take into account all the facts of the case and also the conduct of the parties. (54) 62. In the light of these matters and of the fact that Mærsk was requested to prove its claim in the Netherlands procedure by letter of 25 April 1988, it appears possible that the decision closing the Netherlands liability limitation procedure not only precludes actions by Mærsk in the Netherlands but must also be recognised in Denmark and prevents the enforcement there of a judgment which would require the shipowners to pay damages to Mærsk in respect of the harmful event in question. 63. As a result, I am of the opinion that a decision constituting a liability limitation fund in accordance with the Netherlands procedure in force, without service of the application for the limitation of liability on an affected claimant, cannot be denied recognition in another Contracting State on the basis of Article 27(2) of the Brussels Convention inasmuch as due service of the order on the claimant was effected in good time to enable him to safeguard his rights of defence and, in particular, to challenge the debtor’s right to the limitation of his liability and the amount to which it was to be limited. The fact that the claimant challenged before a higher court the jurisdiction of the court which made the decision authorising the constitution of a liability limitation fund, without raising the objection that prior service of the application for limitation of liability had not been effected, does not remove the obligation to effect due service of the order in good time. V – Conclusion 64. In the light of the foregoing, I accordingly propose that the Court reply as follows to the questions referred to it by the Højesteret: (1) A procedure for the establishment of a liability limitation fund, such as that initiated in the present case by shipowners under Netherlands law by means of an application naming the potential victim of the damage, and an action for damages brought by that victim against those shipowners are not proceedings involving the same cause of action within the meaning of Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland. (2) A decision ordering the establishment of a liability limitation fund in accordance with the Netherlands procedural rules in force in 1986 is a judgment within the meaning of Article 25 of that Convention. (3) A decision to establish a liability limitation fund taken in accordance with the Netherlands procedure in force, in the absence of service of the application for the limitation of liability on an affected claimant, cannot be refused recognition in another Contracting State on the basis of Article 27(2) of the Brussels Convention in so far as due service of the order on the claimant was effected in good time to enable him to safeguard his rights of defence and, in particular, to challenge the debtor’s right to limit his liability and the amount to which it was to be limited. The fact that the claimant challenged before a higher court the jurisdiction of the court which made the decision authorising the establishment of a liability limitation fund, without raising the objection that prior service of the application for limitation of liability had not been effected, does not remove the obligation to effect due service of the order in good time. 1 – Original language: French. 2 – .International Transport Treaties, suppl. 1-10 (January 19865), p. 81, ‘the 1957 Convention’. 3 – OJ 1978 L 304, p. 36, as amended by the Convention of 9 October 1978 on the Accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and amended text, p. 77), (‘the Brussels Convention’). 4 – Georges, J., ‘La limitation de la responsabilité des propriétaires de bateaux’, Sauveplane Rome éditions Unidroit, 1959, p. 62. 5 – The 1957 Convention, which entered into force on 31 May 1968, was ratified by the Kingdom of the Netherlands on 10 December 1965. The Netherlands gave notice of its withdrawal from the Convention on 1 October 1989. The Kingdom of Denmark was also a party to the Convention from 1 March 1965 to 1 April 1984 and was therefore not bound by the Convention at the material time, namely June 1985. However, the national court draws no inference from this and does not mention it. Consequently I shall not take it into account in this Opinion. 6 – Article 3. 7 – Article 4. 8 – .International Transport Treaties, suppl. 1-10 (January 1986), p. 255. This Convention did not come into force in Denmark until 1 December 1986 and in the Netherlands until 1 September 1990. It extended to other persons the right to benefit from the limitation. It provided that only intentional or inexcusable fault on the part of the liable party could eliminate the right to the limitation and it increased the maximum liability in certain cases. 9 – Observations of the Netherlands Government, paragraph 32. 10 – Ibid., paragraphs 40 and 41. 11 – I refer, in particular, to ‘Klagen’ in the German version, ‘vorderingen’ in the Dutch version, ‘domande’ in the Italian version, ‘proceedings’ in the English version, ‘demandas’ in the Spanish version, ‘acções’ in the Portuguese version and ‘krav’ in the Danish version. 12 – See the judgments in Case 144/86 Gubisch Maschinenfabrik [1987] ECR 4861, paragraph 8; Case C-351/89 Overseas Union Insurance and Others [1991] ECR I-3317, paragraph 16; Case C-406/92 TheTatry [1994] ECR I-5439, paragraph 32; and Case C-116/02 Gasser [2003] ECR I-14693, paragraph 41. 13 – See Overseas Union Insurance, paragraph 16. 14 – See Gubisch Maschinenfabrik, paragraph 14, and Overseas Union Insurance and Others, paragraphs 15 to 18. 15 – It is not certain that such a procedure can exist in the framework of the Convention concluded in London on 19 November 1976 because, according to Articles 10 to 12 thereof, the limitation of liability can no longer be invoked as a preventive measure, as on the basis of the 1957 Convention, but only as a defence to an action for damages. The liability limitation fund may be placed on deposit at the court dealing with the action for damages or with any other competent authority of the State in which the action was brought. 16 – Points 40 to 46. 17 – Case 129/83 [1984] ECR 2397, paragraph 14. 18 – In that judgment the Court found that the court ‘first seised’, within the meaning of Article 21 of the Brussels Convention, is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned (paragraph 16). I think this reply holds true in the situation where two courts are seised of inter partes proceedings. In the Zelger case, the question was whether, in that situation, the moment at which the document initiating the proceedings was lodged with the court was decisive or the moment at which that document was served on the defendant. 19 – Paragraph 11. 20 – Paragraph 30. 21 – See Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraphs 20 and 21, and Joined Cases C-174/98 P and C-189/98 P Netherlands and van der Wal v Commission [2000] ECR I-1, paragraph 17. 22 – See Case 49/84 Debaecker and Plouvier [1985] ECR 1779, paragraph 10, and Case C-7/98 Krombach [2000] ECR I-1935, paragraph 43. 23 – See the Jenard Report on the Brussels Convention, OJ 1979 C 59, p. 1, 10. 24 – See Case C-111/01 Gantner Electronic [2003] ECR I-4207, paragraph 30. 25 – It must be observed that Article 30 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 (OJ 2001 L 12, p. 1), which replaces the Brussels Convention from 1 March 2002, provides that, for the purposes of applying the rules on lis pendens and related actions, a court is deemed to be seised: ‘1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or 2. if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’ Consequently both these situations refer to an inter partes procedure. 26 – Article 27(2) provides that a judgment is not to be recognised where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence. 27 – Case 166/80 [1981] ECR 1593, paragraph 9. 28 – Case C-474/93 [1995] ECR I-2113, paragraph 19. 29 – The national court states that ‘by registered letter of 1 February 1988 … the liquidator … informed Mærsk’s lawyer of the court’s order requiring the constitution of a limitation fund’ (p. 11 of the English version). 30 – The English version refers only to ‘the same cause of action’ and the German version does not distinguish between ‘subject-matter’ and ‘cause of action’. 31 – See Gubisch Maschinenfabrik, paragraph 14. 32 – See TheTatry, paragraph 39. 33 – Ibid., paragraph 41. 34 – See Gubisch Maschinenfabrik, paragraph 16. 35 – See TheTatry, paragraph 42. 36 – Order for reference, point 2.5. 37 – That is to say, the damage said to have been caused by the shipowners’ trawler to the pipelines laid by Mærsk in the North Sea while the trawler was fishing in June 1985. 38 – It must be observed that, under Article 1(7) of the 1957 Convention, ‘the act of invoking limitation of liability does not constitute an admission of liability’. 39 – .Gantner Electronic. 40 – Schlosser Report on the Convention on the Accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its interpretation by the Court of Justice, OJ 1979 C 59, p. 71. 41 – Point 129. 42 – The reasoning to the effect that it is not the application for the opening of a liability limitation procedure which initiated the proceedings before the Netherlands court, but rather the order of 27 May 1987, seems to me to be perfectly applicable in the context of Article 22 of the Brussels Convention. 43 – Order for reference, point 2.5. 44 – Paragraph 184. 45 – Case 125/79 [1980] ECR 1553, paragraph 13. 46 – Ibid. 47 – In Italian law, this decision and the application must be served on the debtor, who then has a certain period within which to appeal. If the debtor appeals, the civil inter partes procedure of general law is followed. Failing an appeal, the court declares the order enforceable on application by the creditor. 48 – .Hengst Import, paragraph 14. 49 – .Klomps, paragraph 9; Case C-123/91 Minalmet [1992] ECR I-5661, paragraph 18; and Case C‑172/91 Sonntag [1993] ECR I-1963, paragraph 38. 50 – See the judgments in Klomps, paragraphs 12 and 13, Minalmet, paragraphs 19 to 22, and Sonntag, paragraphs 39 to 44. 51 – Paragraphs 41 and 42. 52 – See Klomps, paragraph 15. 53 – Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. 54 – See Klomps, paragraph 20, and Debaecker and Plouvier, paragraphs 20, 22, 27 and 31 to 33.