61983C0178
OPINION OF MR ADVOCATE GENERAL DARMON
DELIVERED ON 30 MAY 1984 (
1
)
Mr President,
Members of the Court,
1.
The preliminary question which has been referred to you concerns the interpretation of the first sentence of the second paragraph of Article 40 of the Brussels Convention of 27 September 1968, hereinafter referred to as “the Convention”.
Let us recall the facts and the course of the procedure.
On 20 January 1982 the Netherlands firm P. obtained a default judgment from the Arrondissementsrechtbank, Rotterdam, ordering the firm K., whose registered office is in Jeddah, Saudi Arabia, to pay it the sum of 678095 Saudi riyals or the equivalent of that sum in dollars, together with interest as required by law.
The judgment is provisionally enforceable, subject, in the event of an appeal, to the provision by the firm P. of adequate financial or other security.
With a view to the enforcement of the judgment in the Federal Republic of Germany, where the firm K. has a bank account, the firm P. applied to the Landgericht Frankfurt am Main for an order for enforcement (Articles 31 and 32 of the Convention).
By an order of 10 January 1983 made without the firm K. having been summoned to appear (
2
), the President of the Third Civil Division of the German court refused to grant an order for enforcement on the ground that the documents required by Articles 46 (2) and 47 (1) of the Convention had not been produced.
The documents in question are:
“The original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings” (
3
)
and
“Documents which establish that, according to the law of the State in which it has been given, the judgment is enforceable and has been served.” (
4
)
The judgments notes moreover that, although the President of the court gave the firm P. time to produce the documents referred to (
5
), at the hearing that firm only produced the documents which the court did not consider of sufficient probative value.
The firm P. therefore brought an appeal (“Beschwerde”) before the Oberlandesgericht Frankfurt am Main, pursuant to the first paragraph of Article 40 of the Convention.
The second paragraph of Article 40 provides that:
“The party against whom enforcement is sought shall be summoned to appear before the appellate court...”
The Oberlandesgericht asks whether that provision must be applied “even” in the circumstances of this case.
It inclines to the view that the provision need not be applied on two grounds, corresponding to the two elements of the preliminary question referred to you:
(i)
The application for an enforcement order was dismissed simply because the documents were not produced by the firm P. at the proper time.
(ii)
The system provided for by the second paragraph of Article 40 is unsuited to a case where enforcement is to take place in a State other than that in which the party against whom enforcement is sought is domiciled, since in such a case that party can in general identify the asset threatened by enforcement and thus dispose of it before it is seized.
2.
A decision must first be made on the admissibility of the case.
Article 20 of the Protocol on the Statute of the Court of Justice provides that:
“In the cases governed by Article 177 of this Treaty, the decision of the court or tribunal of a Member State which suspends its proceedings and refers a case to the Court shall be ... notified by the Registrar of the Court to the parties...”
In this case the firm K., the defendant in the main proceedings, has not been notified of the decision. It was considered that the firm K. should not be considered a party within the meaning of Article 20 so long as the national court excluded it from the proceedings pending before that court.
That opinion corresponds to that of the Commission. It must be endorsed, since the question referred to you is whether or not the defendant in the main proceedings must be summoned to appear before the Oberlandesgericht, that is to say, whether or not it is a party to the action. The notification to the firm K. of the request for a preliminary ruling would thus prejudge your decision, or at least make that of the Oberlandesgericht entirely otiose.
Finally, it should be noted in this regard that the Oberlandesgericht is dealing with the “Beschwerde” brought by the firm P. against the order of the Landgericht of 10 January 1983 dismissing its application. The Oberlandesgericht is therefore sitting in an appellate capacity and has referred the matter to you pursuant to Article 2 (2) (not Article 2 (3)) and Article 3 (2) of the Protocol of 3 June 1971 on the Interpretation of the Convention by the Court of Justice.
3.
Let us return to the question referred by the Oberlandesgericht. The Court is asked whether, taking into account certain circumstances, the rule set out in the first sentence of the second paragraph of Article 40 of the Convention may admit of an exception.
In this respect the wording of Article 40 leaves no room for any restriction. It provides that if the application for enforcement is refused the applicant may bring an appeal, and specifies, as I have already pointed out, that:
“The party against whom enforcement is sought shall be summoned to appear before the appellate court.”
So much for the letter. Moreover, it faithfully reflects the spirit of the Convention, according to Mr P. Jenard's explanatory report, which was submitted to the governments at the same time as the draft Convention and is the authorized commentary (
6
).
Mr Jenard first describes the enforcement procedure in general terms (
7
). The application, accompanied by the required documents, must be submitted to the competent court, which:
“must give its decision without delay, and is not able to summon the other party. At this stage no contentious proceedings are allowed.”
The decision given by that court may be challenged in an appeal by the party against whom enforcement has been ordered (
8
), or in an appeal by the party whose application for enforcement has been refused (
9
).
Such appeals are brought before the competent court in proceedings in which both parties are given a hearing (
10
). The judgment given on the appeal can be contested only by an appeal in cassation or, in the Federal Republic of Germany, by a Rechtsbeschwerde (
11
).
Simply stated, then, the enforcement procedure is ex parte in the first instance but if an appeal is brought against the decision given at first instance both parties must be given a hearing.
In his commentary on Articles 34, 37, 40 and 41 of the Convention, Mr Jenard justifies the system chosen, which in his view reconciles the element of surprise which is necessary in an enforcement procedure with respect for the defendant's right to a fair hearing. He goes on to state that, although at first instance “the Convention does not allow the court to which application is made to ask the respondent to make submissions, even in exceptional cases” (
12
), once the application has been refused and an appeal is lodged both parties must be given a hearing in order “to avoid numerous appeals” and “to protect the rights of the defendant” (
13
).
The spirit of the Convention is thus in accord with its letter, which is not surprising since the principle of audi alteram partem is a fundamental rule of civil procedure; a restrictive interpretation should be given not to the application of that principle but rather to the exceptions which are expressly made to it.
4.
My views on the matter are thus similar to those expressed by the Commission and by the German Government, and I therefore propose that the question referred to the Court by the Oberlandesgericht Frankfurt am Main should be answered as follows :
The court hearing an appeal brought under Article 40 of the Brussels Convention of 27 September 1968 must, pursuant to the provisions of the first sentence of the second paragraph of that article, hear the party against whom enforcement is sought, even though the application for an enforcement order was dismissed simply because documents were not produced at the appropriate time, and the enforcement order is applied for in a State which is not the State of residence of the party against whom enforcement is sought.
(
1
)	Translated from the French.
(
2
)	Article 34 of the Convention.
(
3
)	Article 46 (2) of the Convention.
(
4
)	Article 47 (1) of the Convention.
(
5
)	Article 48 of the Convention.
(
6
)	Official Journal C 59, 1979.
(
7
)	Ibid., p. 48.
(
8
)	Article 36, first paragraph.
(
9
)	Article 40, first paragraph.
(
10
)	Article 37, first paragraph and Article 40, second paragraph.
(
11
)	Article 37, second paragraph and Article 41.
(
12
)	Commentary on Article 34, at p. 50.
(
13
)	Commentary on Article 40, at p. 53.