61977C0043
OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 19 OCTOBER 1977 (
1
)
Mr President,
Members of the Court,
The defendant in the proceedings which have given rise to the reference for a preliminary ruling which I must discuss today, an Italian commercial representative, obtained on 23 September 1976 from the Tribunale Civile e Penale (Civil and Criminal Court), Turin, a judgment ordering the plaintiff in the main action, a Belgian limited liability company, to pay a certain sum. On 27 December 1976 a Kassationsbeschwerde (appeal in cassation) was lodged against that judgment before the Corte Suprema di Cassazione (supreme court of appeal) in Rome; under Italian law such an appeal does not suspend the execution of the contested judgment. Apparently no recourse was had to the possibility of applying to the Italian court which delivered the contested judgment for a stay of execution.
The defendant in the main action wishes to enforce in Belgium the judgment of the Tribunale Civile e Penale, Turin. For this purpose he obtained from the Rechtbank van Eerste Aanleg (Court of First Instance) in Antwerp an order for its enforcement in accordance with Article 31 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as ‘the Convention on Jurisdiction’).
The plaintiff in the main action appealed against this decision, which was made on 25 November 1976, in accordance with Article 36 of the Convention on Jurisdiction. At the same time it requested a stay of the proceedings concerning the order for enforcement until a final judgment had been delivered in Italy or at least that the enforcement should be made conditional on the provision of security by the defendant. It based these requests on Article 38 of the Convention on Jurisdiction which provides that:
‘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.
The Court may also make enforcement conditional on the provision of such security as it shall determine’.
The plaintiff takes the view that for the purpose of the appraisal of the question whether there has been an ordinary appeal the law of the State in which that judgment was given is important. In accordance with that law, in this case Italian law, an appeal in cassation is however considered as an ordinary appeal, in contrast to Belgian law, because it prevents the decision from having the force of res judicata.
The judgment creditor objects that the application of Article 38 of the Convention on Jurisdiction does not come into consideration because an appeal in cassation does not preclude enforcement under either Italian or Belgian law.
The decision on the application for a stay of the proceedings therefore depends on the question whether the appeal in cassation lodged in Italy is an ordinary appeal within the meaning of the Convention on Jurisdiction. Since the Convention is not in the view of the Belgian court completely clear in this respect, it stayed the proceedings by judgment of 7 April 1977 and referred to the Court the following questions for a preliminary ruling under the Protocol of 3 June 1971 issued under the Convention on Jurisdiction:
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?
I —
I shall begin my opinion with two short observations.
1.
The questions obviously go further than is necessary for the purposes of the main action. They not only mention Article 38 of the Convention on Jurisdiction but also Article 30 thereof which relates to the recognition of a decision given in another Contracting State. In addition, the first part of the first question mentions appeals quite generally while only the second part of the question confines itself to judgments. Thus the problem arises whether I should simply adhere to the questions or whether I should restrict myself according to the known facts.
My opinion is that I should take the latter course and restrict my examination to appeals which can be lodged against judgments. The problem is already complex enough as it is. In addition some of the problems relating to other judicial decisions are different so that, with regard to the present case, there is little to be gained from consideration of them. In this respect I shall merely recall the observation made by the Government of the Federal Republic of Germany that other judicial decisions are of lesser importance, normally serve other purposes and in addition often do not formally acquire the force of res judicata.
I should also confine myself in principle to the interpretation of Article 38, which relates to proceedings for enforcement. This does not however prevent Article 30 of the Convention on Jurisdiction, which relates to the recognition of foreign judgments and also uses the expression ‘ordinary appeal’, from being included in the examination too in so far as it is necessary to discuss an argument which the Commission has based upon it.
2.
According to the wording of the questions chosen by the court making the reference there are two possibilities of interpretation: the concept of ‘ordinary appeal’ may be an independent concept used in the Convention on Jurisdiction, or else the law of the State in which the judgment was given may be determinative in this respect. A third possibility was mentioned by the Government of the Federal Republic of Germany: the law of the State in which enforcement is sought might also be decisive with regard to the classification.
I consider, and I may say that from the beginning, that this third possibility should not be seriously taken into consideration. In fact, quite apart from other arguments which it will be necessary to examine later in connexion with the other possibilities an important objection to the feasibility of deciding according to the law of the State in which enforcement is sought immediately arises. Appeals obviously take different forms in the legal systems of the Member States. Thus in many cases, in particular in the case of atypical appeals, consideration of the law of the State in which enforcement is sought would not enable an unequivocal statement to be made, but only the statement that a specific foreign appeal may more or less be equated with a specific national appeal. Such a classification would therefore not be clearcut. It would involve too much uncertainty and cannot therefore be seriously taken into consideration for the purposes of the interpretation of a convention in the application of which the principle of legal certainly ranks highly.
II —
Turning next directly to the questions submitted by the court making the reference, there is on the one hand the view, and I shall confine myself to the arguments which were substantiated in detail in the proceedings for a preliminary ruling, that the important factor is the law of the State in which the judgment was given. This view is taken by the Government of the United Kingdom and, albeit with little force, by the Commission. On the other hand, the Government of the Federal Republic of Germany has declared itself in favour of the assumption that there is a common independent concept of ‘ordinary appeal’ in the Convention on Jurisdiction.
1.
In the appraisal of this dispute I should like to discuss first an argument which tells strongly in favour of the first solution, classification according to the law of the State in which the judgment was given. It is based on the draft convention by means of which the three new Member States are to accede to the Convention on Jurisdiction. In view of the fact that in the law of the United Kingdom and in Irish law there is a variety of appeals, that no distinction is made between them, even by learned authors, according to whether they are ordinary or extraordinary appeals, and that it is difficult to determine criteria for a distinction, that draft provides that a paragraph shall be added to Article 38, according to which if a decision has been given in Ireland or in the United Kingdom any appeal provided for in the original State must be considered as an ordinary appeal for the purpose of the application of the first paragraph of Article 38.
In addition it was claimed that if the convention is really based upon an independent concept of ‘ordinary appeal’ it must have been possible to apply the criteria applicable thereto also to the appeals known in the United Kingdom and in Ireland and to designate accordingly those which must be considered as ordinary or extraordinary. The fact that no attempt was made to do so tells against the assumption that there is an independent concept with specific criteria contained in the Convention. In addition it must seem strange that all appeals existing in the United Kingdom and in Ireland must be classified as ordinary. There are no doubt also those which correspond to extraordinary appeals in other Member States. Since nevertheless the abovementioned provision of the draft convention has been decided upon, the assumption that the Convention on Jurisdiction contains an independent concept of ordinary appeal leads to the conclusion that exceptions have been permitted for two Member States. This must however appear incomprehensible.
I make no secret of the fact that this argument made a considerable impression on me. However, it does not seem to be completely conclusive. For example, it is simply impossible to overlook the fact that until now this is merely a draft; the proposed provision has not yet become binding. In addition, it is certainly conceivable that if the Court of Justice reaches the view that the Convention contains an independent concept of ‘ordinary appeal’ in respect of which specific criteria apply, an attempt will also be made to classify English and Irish law accordingly. I am therefore of the opinion that I can safely leave aside the argument based on the abovementioned draft convention.
2.
An appraisal of the remaining considerations which have been put forward for and against a Community concept of ‘ordinary appeal’ reveals, and I must say this immediately, more important reasons in favour of such a concept than reasons in favour of classification according to the law of the State in which the judgment was given.
(a)
The Commission has itself referred to several advantages of a common concept:
(aa)
An appeal in cassation is regarded as an ordinary appeal in Italy and in the Netherlands but not in French, Belgian and Luxembourg law. If the law of the State in which the judgment was given were decisive for the purposes of Article 38 of the Convention on Jurisdiction the Convention would be applied in various different ways, whilst if it were accepted that there is an independent concept under Community law uniform legal effects would arise. This is an important aspect with regard to a multilateral convention which, as the Government of the Federal Republic has correctly pointed out, represents a step towards the approximation of international procedural law. Since the Convention, as the Jenard Report shows, is intended to be as progressive as possible and therefore to be a contrast to the previous conventions on enforcement and since it aims moreover at uniform rules on jurisdiction and uniform proceedings for enforcement, this principle of uniform application must certainly take precedence over the fact that in many bilateral conventions such as the Convention between Germany and Greece of 4 November 1961 (see Kerameus ‘In Multitudo Legum Ius Unum’, In Honour of Wilhelm Wengler on the Occasion of his Sixty-Fifth Birthday, Volume 2, p. 383 et sea.) reference is made to the law of the State in which judgment was given in deciding what must be considered as an ordinary appeal.
(bb)
It is moreover certain that Revision (second appeal or accelerated appeal on a point of law) and an appeal in cassation result if successful in the quashing of the contested judgment. It must therefore seem undesirable that there should be no stay of proceedings under Article 38 of the Convention on Jurisdiction if such an appeal is lodged. This would however be the result in some cases if the classification made by the State in which the judgment was given were considered as decisive.
(cc)
The third consideration put forward by the Commission relates to the duty laid down in the Protocol to the Convention on Jurisdiction for the highest courts to refer questions of interpretation to the Court of Justice of the European Communities for a preliminary ruling. If the law of the State in which the judgment was given were decisive, with the result that it would be necessary, in accordance with that law, to regard a certain appeal as extraordinary, it would be possible to enforce the judgment and the duty to refer the matter to the Court of Justice for a preliminary ruling, which is an essential guarantee as far as the Convention is concerned, could not be put into practice.
(b)
In addition to these considerations there is an important argument which the Government of the Federal Republic has put forward. That Government refers to the fact that the Convention on Jurisdiction does not provide for any claim for damages in the event of the unjustified enforcement of a judgment. Article 38 therefore performs the important function of protecting the judgment debtor from serious and possibly irreparable damage. This protection would, as the Commission has already stressed, be rather unequal if the necessary classification were to be made according to the law of the State in which the judgment was given. It might however also be inadequate, inasmuch as national rules on claims for damages in the law on the enforcement of judgments generally take into consideration only the field of interest of domestic cases. It is therefore impossible to refer to those rules in order to claim that there is no objection to the exclusion of a stay of execution under Article 38 because national claims for damages exist.
(c)
Finally, it must be borne in mind in this connexion that a strong argument may be based upon the previous relevant case-law, that is, from the judgment in Case 29/76 (LTU Lufttransport-unternehmen GmbH & Co. KG v Eurocontrol, judgment of 14 October 1976, [1976] ECR 1541). As the Court will remember, that case concerned the meaning of the expression ‘civil and commercial matters’ contained in Article 1 of the Convention. The Court of Justice, contrary to my view that the important factor was the classification by the courts of the State in which the judgment was given — a view in support of which I still believe that good reasons may be put forward — found it necessary to assume that there was an independent concept contained in the Convention. The principal reason given for this was that it is necessary to ensure ‘that the rights and obligations which derive from it for the Contracting States and the persons to whom it applies are equal and uniform’. This principle, which may likewise be deduced from the Jenard Report mentioned above, is certainly also important in respect of the law on the enforcement of judgments.
(d)
Conversely, two other arguments which were used in support of the argument that the determinative factor is the law of the State in which the judgment was given can hardly be decisive.
(aa)
The first referred to the important aspect of legal clarity and legal certainty in respect of the Convention, which must be applied promptly. Account would best be taken of this aspect if the law of the State in which the judgment was given were decisive with regard to the distinction between ordinary and extraordinary appeals. In all except the British and Irish legal systems this distinction has in fact been clearly made, either in legislation, in academic studies or in special international conventions. Thus no conceptual difficulties would arise for the court before which the enforcement of the judgment is sought if it simply adhered to that distinction.
In my opinion this is only apparently convincing. Thus doubt may arise as to whether the very distinction between ordinary and extraordinary appeals under national law is actually so clear, straightforward and comprehensive as portrayed by the representative of the British Government. On the other hand reference may nevertheless be made to the so-called Schlosser Report which was drawn up with a view to the accession of the three new Member States to the Convention on Jurisdiction. Moreover, and this seems even more important, comparable certainty is possible even if an independent concept is accepted. It is only necessary to ensure that the criteria for that concept are laid down as clearly and simply as possible. If this happens, and an opportunity for this exists in the present proceedings, no inordinate difficulties can arise for the court before which the enforcement of the judgment is sought in determining whether an appeal must be considered as ordinary or extraordinary within the meaning of Community law.
(bb)
The Commission deduced a second counter-argument from Article 30 of the Convention on Jurisdiction which, as I have already said, refers to the recognition of judgments and likewise uses the expression ‘ordinary appeal’. The Commission, starting from the correct assumption that the expression used in Article 30 must have the same meaning as it has in Article 38, considers that there is a potential danger here if the argument in favour of an independent concept is accepted, in that accordingly in certain cases a stay of proceedings and thus prevention of recognition of a judgment might be precluded because of the classification of an appeal as an extraordinary appeal, although in the State in which the judgment was given the judgment has not yet become effective because in that State the appeal is classified differently. This is incompatible with the objective of the Convention which is so to speak to make the effects of national judgments uniform within the Community which would exclude the possibility of the effects of the judgment being more extensive in the State in which recognition or enforcement of the judgment was sought than in the State in which the judgment was given.
This argument may however easily be countered. The supposed danger may be avoided immediately if the choice is made in favour of a broad interpretation of the concept of ‘ordinary appeal’ which covers everything which comes within this concept in the Member States. Such a solution seems perfectly possible and is indeed compulsory for other reasons too which I shall have to examine later.
III —
Consequently, since the examination has hitherto shown that there are important reasons for assuming the use of an independent concept of ‘ordinary appeal’ in the Convention on Jurisdiction, the task of establishing the criteria which are decisive with regard to the common concept still remains. This is certainly not easy since the Convention provides but few indications in this respect. If however these indications are evaluated and the objectives and structure of the Convention and the general principles which stem from the corpus of the national legal systems are taken into consideration, as stated in the abovementioned judgment in Case 29/76, sufficiently practicable statements may be made.
(a)
It is necessary in this connexion to start by returning to a point which has already been mentioned, that is, the need to choose a wide interpretation of the concept in question.
It is true that it would be possible to state in opposition to this and in favour of a narrow interpretation that the objective of the Convention is to ensure the recognition and enforcement of foreign judgments on a broad scale, which seems to tell against making a stay of proceedings easier to obtain.
Other considerations however must take precedence.
I have already mentioned, and in this connexion reference should be made to the Jenard Report and to Droz (Competence Judiciaire et Effets des Jugements dans le Marché Commun (Jurisdiction and Effect of Judgments in the Common Market) p. 280), that the Convention concerns so to speak converting a national legal situation into a Community one; if a judgment is recognized it should have the effect in the State in which enforcement is sought which it also has in the State in which the judgment was given. A restrictive interpretation of the concept of ‘ordinary appeal’ would not meet that requirement; the danger would rather exist in this case that a judgment would be recognized abroad although a right has not arisen in the State in which the judgment was given because according to the view taken in that State an ordinary appeal has been lodged.
In addition, the fact that where ordinary appeals exist it is not compulsory to stay the proceedings but that this is at the discretion of the court before which enforcement is sought tells in favour of a broad interpretation. In this way it will be possible to avoid consequences which might arise in the case of a wide interpretation but which are considered undesirable. On the other hand, if a restrictive interpretation were adopted it is certain that in many cases the protective aim of the provision, and I recall once again that the Convention does not provide for any claims for damages in the event of unjustified enforcement of the judgment, would not be fully attained.
Finally, it is also necessary in this connexion to come back once more to the draft which has been drawn up for the accession of the three new Member States to the Convention on Jurisdiction. As I have already mentioned, it was deemed appropriate to include therein a provision according to which in view of the difficulties of delimitation which exist in the United Kingdom and in Ireland all appeals in those States are considered to be ordinary appeals. This, as shown by the Schlosser Report, is considered justifiable because the discretion given to the courts under Article 38 may be so exercised that equilibrium may be achieved in the application of Articles 30 and 38 in all the Contracting States. However, if this is so it is necessary in the interests of this equilibrium also to interpret liberally provisions of the Convention which are already applicable.
(b)
After this finding it is almost as easy to see in addition which criteria would be inappropriate in the present connexion. I must mention three criteria at this point which were also discussed extensively during the proceedings.
(aa)
The question whether the enforcement of a judgment is suspended by an appeal should be disregarded. In any case a judgment may only be enforced in another State if there is an enforceable right in the State in which the judgment was given. Article 38 is also based on this presupposition, which may be deduced from Article 31 of the Convention. Article 38 and the discretion which it confers on the court before which enforcement is sought would therefore be purposeless if only those appeals which suspend enforcement were to be considered as ordinary appeals.
It may also also be said in this connexion that it is likewise impossible to make the question whether the lodging of an appeal might possibly lead to the suspension of the enforcement by the court the decisive factor. A decision of the court in the State in which the judgment was given on the suspension of execution is in fact provided for not only in the case of appeals which, like Berufung, must clearly be regarded as ordinary; it also occurs frequently in the case of extraordinary appeals, as the representative of the British Government stressed. Such a criterion would therefore certainly extend too far the bounds applicable to Article 38.
(bb)
Further, it does not seem to me to be appropriate to make the question of res judicata the decisive factor, in other words whether the lodging of an appeal prevents the decision from having the force of res judicata. If the question of res judicata is made the decisive factor, one indefinite concept is replaced by another. In fact the concept of res judicata in the Member States does not actually seem to be uniform. In addition, in several Member States it is linked precisely to the concept of ordinary appeal; in those States a judgment is said to have the force of res judicata if no ordinary appeal is possible or if the periods for lodging an ordinary appeal have expired (for example in Belgian and in Netherlands law). The use of the criterion of res judicita would therefore be incompatible with the basic concern previously stated, that it is necessary for the definition of the concept of ‘ordinary appeal’ to be based, in the interests of legal certainty and legal uniformity, on criteria which are not only simple but also clear.
(cc)
Finally, the question whether or not when certain appeals are lodged restrictions apply with regard to the reasons upon which the appeal is based, that is, the permissible ‘moyens’ (submissions), should also be disregarded. Otherwise both an appeal in cassation in the Netherlands and in Italy and Revision in German law would have to be considered as extraordinary appeals. I have however already pointed out that in their case it is undesirable to exclude the possibility of staying the proceedings because they may lead to the annulment of a judgment.
(c)
If we consider what criteria may positively come into consideration it appears quite quickly that there are really not many of them, in fact two or at most three. According to the meaning and purpose of the provision they should however also be sufficient and ensure a relatively easy application.
(aa)
An important indication seems to me to be the fact that Article 38 itself speaks of the time for an appeal. It is necessary to conclude from this that periods of time must apply to the lodging of ordinary appeals and in principle, periods of time which begin to run with delivery or service of the judgment.
It is necessary however to go a step further and declare, as does the Government of the Federal Republic of Germany, that relatively short periods of time must be involved. It is impossible to object to this, as was attempted, that Article 38 thereby loses its raison d'etre, for periods of about three months, which may come in question in this connexion, are nevertheless long enough to show the importance of the question whether there should be a suspension of enforcement or not. Conversely, it is possible to refer, with regard to the requirement of relatively short periods of time, to the fact that the Convention is intended to facilitate enforcement and that therefore the suspension of enforcement must not be too protracted. In addition, a review of comparative law also indicates this. Thus very short periods of time apply to Berufung and Widerspruch in the case of default judgments, which are generally considered as ordinary appeals. If I am correct, they are between two weeks and three months long, with the exception of Luxembourg law in which in the case of default judgments given against parties who are not legally represented the period for the lodging of a Berufung, three months, must apparently be added to a possible period for the lodging of a Widerspruch, up to six months.
It is likewise possible to determine what periods of time come into consideration in the case of an appeal in cassation, which is, the Court is aware, involved in the main action, with the aid of an examination of comparative law. In this connexion it appears that the periods of time which come into consideration here under the legal systems of the Member States are generally of between one month and three months from service or delivery of the judgment. Only in Italy, if I am correct, does the period of one year from ‘pubblicazione della sentenza’ (notification of the judgment) apply, and this moreover also in the case of a Berufung, if notice of the judgment is not served. This must however also be included in view of the abovementioned requirement that the concept of ‘ordinary appeal’ must be interpreted so that it covers everything which is classified as such under the national legal systems.
Moreover it becomes clear at the same time with these observations on the need to observe relatively short periods of time that appeals which amount to the re-opening of the proceedings cannot come into consideration. In fact in such cases the relevant periods of time generally start to run from the moment at which the reason for the re-opening of the case becomes known and accordingly they do not preclude review of a judgment even after considerable time. In addition, it is also important in this connexion that in the legal systems of the Member States such appeals are unanimously designated as extraordinary.
(bb)
The question whether an appeal can have direct effects on the rights and duties of the parties which are concerned in the contested judgment should constitute a second important criterion. Accordingly, an ordinary appeal is involved only if the writ of execution may be amended when the appeal has been heard and it might thus happen that the judgment which has nevertheless been enforced was unjustified. In fact only in such cases is there a need to protect the judgment debtor. Cassation dans l'intérêt de la loi (appeal in cassation in the interests of the law) under French law could, if the basic objective laid down in Article 38 were taken into consideration, therefore certainly not be held to be an ordinary appeal.
(cc)
Finally, and this consideration may however be left open for the purposes of the dispute in the main action, it is still possible to consider attaching importance to the question whether an appeal brings the case before a court of the same level of jurisdiction and if it is therefore possible to speak of the continuation of the same proceedings but not of the start of fresh proceedings. This consideration, which was also put forward by the Government of the Federal Republic of Germany, obviously has in view appeals such as a complaint of unconstitutionality which may also be brought against judgments. It is in fact possible to consider attributing significance to it because in this connexion possibilities are involved which are only available in two Member States and which can certainly not be counted as ordinary appeals even in those States.
For similar reasons, and this must likewise merely be briefly touched upon, it would also be necessary to exclude appeals in which, as in the case of Drittwiderspruchsklagen (objections raised by third parties) the interests of third parties are involved. Quite apart from the fact that in such cases too there are frequently no time-limits or very lengthy ones, a decisive factor with regard to this appraisal is that such appeals, where they exist, are likewise unanimously classified as extraordinary.
There can be very little more to say from the point of view of Community law with regard to the criteria for determining whether ordinary or extraordinary appeals are involved, within the meaning of the Convention.
IV —
I therefore conclude that the following reply should be given to the questions referred for a preliminary ruling:
(a)
The concept of ‘ordinary appeal’ within the meaning of Article 38 of the Convention on Jurisdiction is not determined according to the law of the State in which the judgment was given or according to the law of the State in which enforcement is sought but must be regarded as an independent concept of Community law.
(b)
Ordinary appeals against judgments within the meaning of Article 38 of the Convention on Jurisdiction are those which must be lodged within relatively short periods of time after delivery or service of the judgment and which may lead to the annulment or amendment of the judgment with effect for parties to the proceedings for enforcement.
(
1
)	Translated from the German.