No C 59/66 Official  Journal  of the European  Communities 5. 3. 79 
REPORT  ON  THE  PROTOCOLS 
on the interpretation  by the Court  of Justice  of the Convention  of 29 February  1968  on the 
mutual  recognition  of companies  and  legal  persons  and  of the Convention  of 27 September 
1968  on jurisdiction  and  the enforcement  of judgments  in civil  and  commercial  matters 
(Signed  at Luxembourg,  3 June  1971) 
By Mr P. JENARD 
Directeur  in the Belgian  Ministry  of Foreign  Affairs  and  External  Trade 
I. General  remarks 
1. In Joint  Declaration  No  3,  annexed  to  the 
Convention  on the  mutual  recognition  of companies 
and legal  persons,  signed  at Brussels  on 29 February 
1968,  the  Governments  of the  Member  States  of the 
European  Communities  expressed  their  willingness  to 
study  means  of avoiding  differences  in the interpretation 
of the Convention.  To this  end,  they  agreed  to examine 
the possibility  of conferring  jurisdiction  in certain 
matters  on  the  Court  of Justice  of the  European 
Communities  and,  if necessary,  to  negotiate  an 
agreement  to that  effect. 
A similar  Joint  Declaration  was  annexed  to  the 
Convention  on  jurisdiction  and  the  enforcement  of 
judgments  in civil  and  commercial  matters,  signed  at 
Brussels  on  27  September  1968.  This  Declaration 
envisages  the  possibility  of assigning  to the  Court  of 
Justice  jurisdiction  both  to interpret  the Convention  and 
to settle  any  conflicting  claims  and  disclaimers  of 
jurisdiction  which  may  arise  in applying  it. 
2. In  the  course  of negotiations  to give  effect  to these 
Declarations,  it was  soon  agreed  to give  the  Court 
additional  jurisdiction,  and  to use  for  the  purpose  a 
system  based  on Article  177  of the  Treaty.  The  further 
question  nevertheless  arose  as to whether  it would  be 
appropriate  to draft  a general  convention  applicable  to 
all the  conventions  which  had  been  or were  to be 
concluded  on the  basis  of Article  220,  or whether  it 
would  not  be preferable  to seek  solutions  which  took 
into account  the  individual  characteristics  of each  of 
these  conventions. 
This  question  was  approached  in an entirely  pragmatic 
manner.  A detailed  study  was  made  of the two  Conven-
tions  already  signed,  the  Convention  on the  mutual recognition  of companies  and  legal  persons,  and  the 
Convention  on  jurisdiction  and  the  enforcement  of 
judgments  in civil  and  commercial  matters. 
3. This  study  led  to the  conclusion  that  these  two 
Conventions  have  distinct  features  which  justify 
different  arrangements  for  their  interpretation  by the 
Court  of Justice.  Although  it had  been  suggested  that  a 
single  convention  might  determine  the  jurisdiction  of 
the Court  to interpret  all the conventions  concluded  on 
the basis  of Article  220  of the Treaty,  in the end  it was 
thought  preferable  to conclude  separate  Protocols  which 
would  be better  adapted  to the requirements  of each  of 
the Conventions. 
4. There  was  no need  to apply  the procedure  of Article 
236 of the  Treaty  for the purposes  of concluding  these 
Protocols  since  they  deal  with  the  interpretation  of 
Conventions  drawn  up pursuant  to Article  220  of the 
Treaty  and  in no way  aim  at revising  the Treaty  itself. 
They  merely  confer  on the  Court  of Justice  further 
jurisdiction  which  is additional  to, but  does  not  affect, 
its existing  jurisdiction  (1). 
II. Protocol  on the interpretation  of the Convention  on 
the mutual  recognition  of companies  and  legal  persons 
5. As  regards  the  interpretation  of the  Convention  on 
the mutual  recognition  of companies  and  legal  persons, 
O On  various  occasions,  jurisdiction  has been  conferred  on 
the Court  of Justice  without  reference  to the  revision 
procedure  set out in Article  23 6 (internal  agreements  under 
Conventions  of Association  — see OJ No 93, 11. 6. 1964, 
p. 1490/64;  provisions  of Council  Regulation  No 17 on 
appeal  to the  Court  — see  OJ No  13,  21.  2. 1962, 
p. 204/62). 
5. 3. 79 Official  Journal  of the European  Communities No C 59/67 
there  was  thought  to be no reason  for departing  from 
the preliminary  ruling  system  laid  down  in Article  177 
of the Treaty;  and  this  system  was  therefore  adopted  in 
the draft  Protocol  in question. 
Article  1 of the  Protocol  confers  on  the  Court 
jurisdiction  to interpret  the Convention  of 29 February 
1968,  Joint  Declaration  No 1 contained  in the Protocol 
annexed  to that  Convention,  and  the Protocol  which  is 
the subject  of this  report.  Article  2 repeats,  in identical 
terms,  the second  and  third  paragraphs  of Article  177, 
defining  the circumstances  in which  references  may  be 
made  to the  Court  by courts  which  have  to decide 
questions  of interpretation. 
6. Since  the  Convention  sometimes  refers  back  to 
national  law,  the problem  arose  as to whether  it might 
be necessary  expressly  to exclude  the jurisdiction  of the 
Court  to interpret  such  law.  It was  thought  unnecessary 
expressly  to exclude  jurisdiction  in this  respect,  for the 
cases  decided  by the  Court  of Justice  have  already 
firmly  established  that  it has no jurisdiction  to interpret 
national  law. 
7. Article  3 concerns  the  procedure  to be followed 
before  the Court  of Justice  when,  in accordance  with 
the Protocol,  the Court  is asked  to give  a ruling. 
It was  thought  appropriate  to provide  that  the Rules  of 
Procedure  of the Court  should  be supplemented  to take 
account  of the new  jurisdiction.  Article  3 (2) indicated 
that Article  188  of the  Treaty  is to be used  for  this 
purpose. 
It was  considered  that,  in order  to ensure  that  the 
Convention  would  be applied  as effectively  and  as 
uniformly  as possible,  an exchange  of information 
should  be organized  on judgments  of national  courts 
against  whose  decision  there  is no  remedy  under 
national  law. 
A Joint  Declaration  to this  effect  is annexed  to the 
Protocol. 
III. Protocol  on the interpretation  of the Convention  on 
jurisdiction  and  the  enforcement  of judgments  in civil 
and commercial  matters 
8. The  study  of the Convention  on jurisdiction  and  the 
enforcement  of judgments  in civil  and  commercial 
matters  showed  that  it has  features  sufficiently 
distinctive  to  justify  a separate  system  for  its 
interpretation  by the Court  of Justice. There  was  unanimous  agreement  on the need  to ensure 
uniform  interpretation  of the Convention,  and  hence  to 
confer  new  jurisdiction  on the Court  of Justice,  using  a 
system  based  on Article  177.  But  it was  feared  that,  in 
view  of the  number  and  diversity  of the  disputes  to 
which  the  Convention  applies,  an application  for  a 
preliminary  ruling  on the lines  of Article  177  might  be 
made  by one  of the parties  either  as a delaying  tactic  or 
as a means  of putting  pressure  on an opponent  of 
modest  financial  means.  In short,  the application  might 
be made  for improper  purposes. 
(1) This  Convention  will  be applicable  in a large 
number  of cases.  It governs  not  only  recognition 
and enforcement  of judgments,  but  also  the 
international  jurisdiction  of the  courts,  and  in 
particular  all cases  where  a person  is sued  in the 
courts  of a Contracting  State  in which  he is not 
domiciled.  Moreover,  it is not confined  to a limited 
field  such  as the  recognition  of companies,  but 
extends  to all civil  and  commercial  matters  relating 
to rights  in property  (litigation  over  all kinds  of 
contract,  non-contractual  liability,  maintenance, 
etc.). 
(2) At the stage  of recognition  and  enforcement,  Article 
34 of the  Convention  provides  that  the  court  to 
which  application  is made  for the issue  of an order 
for enforcement  shall  give  its decision  without 
delay,  and  without  the  party  against  whom 
enforcement  is sought  being  entitled  at that  stage  of 
the proceedings  to make  any  submissions. 
Plainly,  an application  to the Court  of Justice  for a 
preliminary  ruling  would,  if made  at this  stage, 
undermine  the object  of the Convention  which,  by 
introducing  a new,  standardized,  ex parte  procedure 
for enforcement,  aims  at eliminating  delaying  tactics 
and preventing  the  respondent  from  withdrawing 
his assets  from  any  measure  of enforcement. 
(3) Finally  it must  be stressed  that  decisions  of the 
Court  of Justice  on  the  interpretation  of the 
Convention  differ  from  decisions  on  the 
interpretation  of other  conventions,  as regards  the 
consequences  for the parties. 
Thus,  if the court  were  to interpret  a provision  of 
the Convention  so as to rule  that  the courts  seised  of 
a matter  had  no jurisdiction,  the proceedings  might 
well have  to be instituted  again  from  the  outset, 
either  in a State  other  than  that  whose  courts  were 
No C 59/68 Official  Journal  of the European  Communities 5. 3. 79 
originally  seised  or, perhaps,  in other  courts  in the 
same  State  (see,  for  example,  Article  5 of the 
Convention  which  lays  down  special  rules  of 
jurisdiction). 
9. The  Protocol  therefore  follows  the system  of Article 
177,  but  subject  to such  adjustments  as were  thought 
necessary  to deal  with  the  matters  set out  above.  The 
system  may  be summarized  as follows: 
(a) the courts  which  are  allowed  to refer  questions  to 
the court  are expressly  specified; 
(b) the right  to apply  to the  court  for  a preliminary 
ruling  is not given  to courts  of first  instance; 
(c) the Protocol  provides  that  the  Courts  of Cassation 
and other  courts  of last  instance  are required  to refer 
a question  of interpretation  to the  court  if they 
consider  that  a decision  of the  Court  on  that 
question  is necessary  to enable  them  to give 
judgment; 
(d) in addition  to requests  for  a preliminary  ruling, 
there  is a novel  provision  for interpretation  by the 
Court  of Justice,  similar  to the  'pourvoi  dans 
l'interet  de la loi'. 
10. Article  1, which  is similar  to Article  1 of the 
Protocol  on the interpretation  of the Convention  on the 
mutual  recognition  of companies  and  legal  persons, 
confers  on  the  Court  jurisdiction  to interpret  the 
Convention  of 27 September  1968  and  its Protocol,  as 
well as the Protocol  which  is the subject  of this  report. 
11. Article  2 lists  the national  courts  which  may  ask 
the Court  to give  a preliminary  ruling. 
(1) Courts  of first  instance  are not included  in this  list. 
Their  exclusion  is designed  mainly  to prevent  the 
interpretation  of the  Court  being  requested  in too 
many  cases,  and  particularly  in trivial  matters. 
Moreover,  it was  thought  that  where  two  courts  of 
first instance,  for example  a 'justice  de paix'  and  an 
Amtsgericht,  gave  judgments  which  became  res 
judicata  and  showed  differences  of interpretation  in 
the application  of the Convention,  this  should  not 
necessitate  further  action,  any  more  than  would 
similar  differences  of interpretation  between  two 
inferior  courts  of the same  country.  Similarly,  it was argued  that  the  Court  of Justice  should  not  be 
required  to give  rulings  unless  it was  fully  informed. 
In order  to achieve  this,  questions  of interpretation 
should,  in the  first  place,  be dealt  with  by the 
national  courts,  especially  in view  of the fact  that  in 
the interests  of legal  certainty  the Court  of Justice 
can only  seldom  depart  from  the  principles 
established  by its previous  judgments. 
(2) Article  2(1)  specifies  by name  the courts  which  are 
allowed  to refer  questions  to the Court  of Justice, 
including  those  which,  pursuant  to Article  3(1),  are 
required  to do so. Such  a list seemed  to be essential, 
since  the present  wording  of the third  paragraph  of 
Article  177  has  given  rise  to  conflicting 
interpretations  as to which  are  the  courts  and 
tribunals  against  whose  decisions  there  is no 
judicial  remedy  under  national  law  (for  example, 
the theoretical  and  pragmatic  schools  of thought  in 
Germany). 
It seemed  all the more  necessary  to make  this  point 
clear  because,  under  the  Protocol,  inferior  courts 
have  no jurisdiction  to refer  a question  to the Court 
of Justice. 
This  list  also  takes  -into  account  the  fact  that  the 
Convention  of 27 September  1968  governs  only 
civil and  commercial  matters  concerning  property 
rights;  the list therefore  includes  only  those  Courts 
which  have  jurisdiction  in such  cases. 
(3) Article  2 (2)  states  that  the  power  to refer  a 
question  to the Court  is also  given  to the courts  of 
the Contracting  States  when  they  are sitting  in an 
appellate  capacity.  The  Courts  in question  thus 
include  courts  of appeal,  save  for the  exceptional 
cases  when  they  are  sitting  at first  instance  when 
sitting  in an appellate  capacity. 
In the Federal  Republic  of Germany  the expression 
'appeal'  includes  'Beschwerde'. 
(4) Article  2 (3) lays  down  that  in the cases  provided 
for in Article  37 of the Convention  of 27 September 
1968,  the courts  referred  to in that  Article  may  also 
refer  a question  to the  Court  of Justice.  It will  be 
remembered  that  Article  37 governs  appeals  against 
judgments  authorizing  the enforcement  of a foreign 
judgment. 
5. 3. 79 Official  Journal  of the European  Communities No C 59/69 
12. Article  3 lays  down  that  a court  of last  instance  is 
bound  to refer  a question  to the Court  of Justice  only  'if 
it considers  that  a decision  on the question  is necessary 
to enable  it to enable  it to give  judgment'.  In Article  177 
of the Treaty  of Rome  this  provision  appears  only  in the 
second  paragraph,  governing  cases  in which  other 
courts  are  entitled  to refer  a question  to the  Court  of 
Justice. As regards  its form,  Article  3 differs  from  Article  177,  in 
that it sets  out first  of all the rule  for the courts  of last 
instance,  and  thereafter  for the other  courts.  The  object 
of this  modified  form  was  to emphasize  that  the  Pro-
tocol  was  designed  solely  to provide  a specific  solution 
to problems  of interpretation  of the  Convention  on 
jurisdiction  and  the  enforcement  of judgments  in civil 
and commercial  matters. 
The provision  contained  in Article  3 (1) of the Protocol 
accords  with  the interpretation  now  generally  given  to 
Article  177:  it is generally  agreed  to be beyond  dispute 
that a court  of last  instance  has  discretion  to assess  the 
relevance  of questions  put to it for interpretation. 
Nevertheless,  this  provision  seemed  necessary  to avoid 
conflicting  interpretations;  for  it will  be remembered 
that,  as has already  been  pointed  out in paragraph  8 (3) 
of this  report,  decisions  of the Court  of Justice  on the 
interpretation  of the  Judgments  Convention  differ,  in 
their  consequences,  from  decisions  of the interpretation 
of other  conventions. 
Thus  if the jurisdiction  of a court  were  challenged  on 
appeal,  and  the  Court  of Justice  ruled  that  the 
Convention  had  been  misinterpreted  by the first  court, 
the proceedings  might  have  to be instituted  again  from 
the very  beginning,  either  in another  State  or, perhaps, 
in another  court  in the same  State. 
A party  to an action  might  accordingly  be greatly 
tempted  to raise  a question  of interpretation  of the 
Convention  before  an appellate  court  merely  in order  to 
gain time,  and  the temptation  would  be all the greater  if 
that court  were  automatically  required  to refer  the 
question  to the Court  of Justice. 
A number  of other  solutions  were  considered,  including 
giving  the highest  courts  only  a power,  rather  than  a 
duty,  to refer  a question  to the Court,  or requiring  them 
to refer  a question  only  if they  would  otherwise  give  to 
a provision  an  interpretation  different  from  the 
interpretation  already  given  either  by the  Court  of 
Justice  or by other  courts.  Finally,  however,  a provision 
very  close  to Article  177  was  adopted  in order  to 
achieve  the greatest  possible  uniformity  in Community 
law. 
For the reasons  set out above,  it was  thought  necessary 
to confirm  the discretion  of courts  of last  instance  by 
means  of a clear  and  unambiguous  text,  and  above  all 
to make  it proof  against  any  possible  subsequent 
tendency  automatically  to refer  questions  to the Court. 13. Since  the Convention  also  refers  back  to national 
law, reference  should  be made  to what  was  said  in this 
connection  in the commentary  on the  protocol  on the 
interpretation  of  the  Convention  on  the  mutual 
recognition  of companies  (see  paragraph  6). 
14. Article  4 lays  down  a new  procedure  based  in part 
on the ^pourvoi  dans  l'interet  de la loi' and  in part  on 
the procedure  for  giving  advisory  opinions.  All  the 
countries  of the Community,  with  the exception  of the 
Federal  Republic  of Germany,  have  a form  of appeal  for 
the clarification  of a point  of law  which  enables  the 
competent  judicial  authority,  in this  instance  the 
Procurators-General  of the  Courts  of Cassation,  to 
appeal  against  a final  decision  which  misunderstands  or 
misapplies  either  the letter  or the spirit  of the law.  The 
purpose  of this  appeal  is to avoid  perpetuating  an 
erroneous  interpretation  of the  law  where  the  parties 
have  omitted  to appeal  against  the  decision  which 
includes  that  interpretation  (see  Dalloz,  Encyclopedic 
juridique  under  Cassation  No 2509). 
Article  4 is designed  to  make  for  a uniform 
interpretation  of the  Convention  by  introducing  a 
procedure  complementary  to  the  request  for  a 
preliminary  ruling  provided  for  in Article  3. The 
purpose  is to ensure  a uniform  interpretation  for  the 
future  wherever  existing  judgments  are in conflict. 
In the  last  analysis,  this  procedure  occupies  an 
intermediate  position  between  the  'pourvoi  dans 
l'interet  de la loi',  from  which  it differs  in that  it does 
not entail  the  setting  aside  of a judgment  which  is 
ultimately  shown  to  have  misinterpreted  the 
Convention,  and  that  of an  advisory  appeal.  The 
procedure  is, however,  limited  to cases  in which  a court 
has already  given  judgment. 
Paragraph  1 defines  the cases  in which  the  competent 
authority  of a State  may  apply  to the Court  of Justice.  It 
will be for  that  authority  to decide  whether  it is 
advisable  to refer  a matter  to the  Court,  and  it will 
presumably  not  do so unless  the  national  judgment 
includes  reasons  which  might  lead  to an interpretation 
different  from  that  previously  given  by the  Court  of 
Justice  or by a foreign  court.  If there  are  no factors 
involved  which  make  it likely  that  the  principles 
No C 59/70 Official  Journal  of the European  Communities 5. 3. 79 
established  in the decided  cases  would  be changed,  the 
national  authority  could  always  seek  to clarify  the point 
of law  by appealing  in its own  country  in accordance 
with the procedure  there  in force. 
Paragraph  2 lays  down  that  rulings  given  by the Court 
shall  not affect  the decisions  submitted  to it, in the same 
way that  the setting  aside  of a judgment  following  an 
appeal  to clarify  a point  of law in no way  influences  the 
position  of the parties. 
It follows  that  the judgments  of the Court  cannot  give 
rise to any  fresh  proceedings,  even  where  otherwise  an 
extraordinary  avenue  of appeal  might  be appropriate. 
Paragraph  3 lays  down  that  the Procurators-General  of 
the Courts  of Cassation  (who,  in the countries  which 
know  the  'pourvoi  dans  l'interet  de la loi',  are 
competent)  or any other  authority  designated  by a State, 
are entitled  to request  the Court  of Justice  for a ruling. 
The designation  of the Procurators-General  is further 
evidence  that  the appeal  procedure  laid  down  in Article 
4 is intended  solely  to clarify  points  of law. 
The wording  of paragraph  3 takes  account  of the 
situation  obtaining  in Germany,  where  the  'pourvoi 
dans  l'interet  de la loi'  is unknown.  It furthermore 
empowers  any of the Contracting  States  to designate  any 
other  authority  or even  to designate  two  authorities,  as 
for example  the Procurator-General  for appeals  against 
judgments  of civil,  commercial  or criminal  courts  in 
civil matters,  and  the  Minister  of Justice  for appeals 
against  decisions  of administrative  tribunals. 
Paragraph  4 amends  Article  20 of the Statute  of the 
Court  of Justice  to deal  with  the procedure  provided  for 
in Article  4. The  amendment  takes  account  of the fact 
that the parties  to the original  proceedings  will  have  no 
interest  in intervening  at this  stage. 
It may  be wondered  what  are  the  implications  of a 
ruling  on interpretation  given  on the basis  of Article  4. 
The ruling  certainly  is not  binding  on the  parties.  It 
must  be acknowledged  that  such  a ruling  has no force  in 
law, and  that  accordingly  nobody  is bound  by it. But 
clearly  it will  have  the greatest  persuasive  authority  and will for  the  future  constitute  the  guideline  for  all 
Community  courts.  In this  respect  it may  be compared 
with the decision  on a 'pourvoi  dans  l'interet  de la loi'. 
Such  a decision  is binding  on nobody,  but constitutes  a 
decision  of principle  of the greatest  importance  for the 
future,  and one  which  judges  will  generally  follow. 
15. Article  5 of the  Protocol,  like  Article  3 of the 
Protocol  on the interpretation  of the Convention  on the 
mutual  recognition  of  companies,  extends  the 
provisions  governing  the jurisdiction  of the  Court  of 
Justice  to cover  the  exercise  of the  new  jurisdiction 
conferred  on it. 
However,  these  provisions  are extended  only  in so far as 
the Protocol  does  not  otherwise  provide;  this 
reservation  chiefly  concerns  Article  177  of the Treaty, 
whose  provisions,  even  if they  should  be modified,  are 
not-  applicable  to the  Protocol,  which  has  its own 
separate  provisions  on this  point. 
16. Article  11 provides  for any relevant  amendment  to 
the jurisdiction  of the courts  of the Contracting  States. 
17. The  other  Articles  of the Protocol,  which  contain 
the final  provisions,  give  rise to no particular  comment. 
Again,  an exchange  of information  is to be organized  on 
the decisions  of the courts  referred  to in Article  2 (1) in 
order  to ensure  that  the  Convention  is applied  as 
effectively  and  as uniformly  as possible.  A Joint 
Declaration  to this  effect  is annexed  to the Protocol. 
18. The  provisions  of the Convention  on lis pendens 
and related  actions  should  go a long  way,  if not all the 
way,  towards  resolving  any  problems  which  may  arise 
from  conflicting  claims  and  disclaimers  of jurisdiction. 
Where,  however,  such  problems  arise  from  conflicting 
interpretations,  they  will  be solved  by applying  the 
Protocol.