EXPLANATORY REPORT on the Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by the Court of Justice of the European Communities, of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters (Text approved by the Council on 26 June 1997) (97/C 261/04)

I. GENERAL REMARKS

1. At its meeting on 29 and 30 October 1993, the Council instructed the Working Party on the Simplification of Document Transmission to draw up an instrument designed to simplify and speed up the procedures for the transmission between the Member States of judicial and extrajudicial documents in civil or commercial matters.

In the course of work on the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, it was considered necessary to give the Court of Justice jurisdiction to interpret its rules, in order to ensure uniform application.

Once the Working Party had completed its work, the Netherlands Presidency submitted the next of the draft Convention for examination by the European Parliament, in accordance with Article K.6 of the Treaty on European Union (1).

On 26 May 1997 the Council adopted this Protocol (2), together with the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters. These instruments were signed on the same day by the representatives of all the Member States.

2. (a) The enacting terms drawn up are based on Article 177 of the EC Treaty; they echo to a very large extent Articles 1 to 4 of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

In particular, the Protocol subsumes the two methods of bringing proceedings before the Court provided for in the 1971 Protocol.

(b) The procedures for the entry into force of the Protocol are, however, similar to those established by the first and second Protocols of 19 December 1988 on the interpretation of the Convention on the Law applicable to Contractual Obligations.

The principle of assignment of jurisdiction to the Court is referred to in the Convention under discussion, but it is the Protocol which defines in particular the conditions for bringing proceedings and the national courts competent to do so.

The entry into force of the Convention, which will take place after its ratification by the 15 Member States, must precede that of the Protocol, which is subject only to adoption by three of those States.

Accordingly, the earliest that the Protocol can enter into force is at the same time as the Convention. As a result, only the courts of a Member State that is a party to both the Convention and the Protocol will be able to ask the Court of Justice for a ruling or an opinion on a question of interpretation.

(c) Lastly, the final provisions are similar to those laid down in this area by the Council of the European Union in respect of the Conventions established in the context of Title VI of the Treaty on European Union. They correspond to those of the Convention, mutatis mutandis.

II. COMMENTS ON THE ARTICLES

Article 1

Article 1 establishes the principle, contained in the 1971 Protocol, of assignment of jurisdiction to the Court of Justice for interpreting the provisions of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil and commercial matters and of the Protocol itself.

Article 2

1. This Article defines the courts of the Member States which are competent to make a referral to the Court of Justice for a preliminary ruling on a question of interpretation.

These are, firstly, the highest courts of Member States, which are listed in paragraph 1 (a).

The list is limitative and any other supreme courts which might exist have no powers of referral, even if their decisions have civil or commercial impact.

Secondly, under the terms of paragraph 1 (b), the courts of Member States sitting in an appellate capacity also have powers of referral to the Court of Justice.

This essentially refers, therefore, to appeal courts, except when they are sitting as tribunals of first instance, and to other national courts hearing cases in their capacity as appeal courts.

Courts sitting in judgement at first instance, however, have no power to refer questions to the Court of Justice.

2. The list given in Article 2 (1) (a) may be modified at the request of the Member State concerned. That possibility was not provided for in the 1971 Protocol.

Such modification may prove necessary, for example, where a change takes place in a Member State's judicial system.

The request must be sent to the Secretary-General of the Council, in his capacity as depositary of the Protocol. He informs the other Member States of the request as quickly as possible, including the States which are not yet party to the Convention.

The decision on the modification of the list is taken by the Council in accordance with the rules of procedure applicable.

Once it has been adopted, the modification displays its effects under the conditions specified in the Council decision (stipulating for instance the date of entry into force of the modification). Given the nature of the decision, it did not seem necessary for it to be adopted by the Member States in accordance with their respective constitutional requirements. Provisions has therefore been made for specific rules, which constitute an exception to the amendment procedure laid down in Article 9 of the Protocol.

In the event of accession to the Protocol by a State which becomes a member of the European Union, that State will have to indicate, when it deposits its instrument of accession, which of its highest courts will be competent to ask the Court of Justice to rule on a question of interpretation (Article 8 (3) and (4)).

Such a mechanism allows for monitoring by Member States, even those not party to the Convention, of the courts designated, which should enable the system to continue to operate on a sound basis.

Article 3

1. This Article, which is based on Article 177 of the EC Treaty and subsumes Article 3 of the 1971 Protocol on the interpretation by the Court of Justice of the 1968 Brussels Convention, concerns the procedure for referral for a preliminary ruling.

Paragraph 1 stipulates that, where the courts listed in Article 2 (1) (a) consider an interpretation necessary to enable them to give judgment, they must refer such questions to the Court of Justice.

Insofar as it imposes a requirement on the highest courts, the purpose of such a provision is to promote uniform application of the Convention within the Member States of the European Union.

2. Article 3 (2) stipulates that, when sitting in an appellate capacity, courts have the option of referring a question to the Court of Justice with a request for interpretation where they consider a decision necessary on a point raised in a case pending before them.

Article 4

1. This Article echoes Article 4 of the 1971 Protocol. It makes provisions for a second procedure, which enables the Procurators-General of the Courts of Cassation or any other authority designated by the Member States to ask the Court of Justice for a ruling on a question of interpretation, where they see that a judgment by a court in their State which has become res judicata conflicts with the interpretation given on that point by the Court of Justice or by the court of another State party to the Protocol.

This provision is also designed to ensure uniform interpretation of the Convention.

It is for the competent judicial authority to assess the advisability of making a request for interpretation to the Court of Justice in such a case.

2. In addition, all Member States, even those not party to the Protocol, as well as the Commission and the Council of the European Union, are entitled to submit statements of case or written observations to the Court of Justice, once the latter has received a request for interpretation.

Article 5

As in the 1971 Protocol, this Article establishes the principle that the Statute of the Court of Justice and its Rules of Procedures are to apply.

Article 6

This Article, which stipulates that this Protocol may not be subject to any reservation, requires no particular comment.

Article 7

This Article makes provision for the entry into force of the Protocol in accordance with the rules laid down in this regard by the Council of the European Union.

In order to enable the Court of Justice to exercise its jurisdiction as soon as possible, the entry into force of the Protocol has been set at the expiry of a 90 day period following deposit of its instrument of adoption by the third of the 15 States which were members of the European Union on 26 May 1997, the date of adoption by the Council of the Act drawing up this Protocol, to do so.

However, the Protocol cannot enter into force until all 15 Member States have adopted the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil and commercial matters. In accordance with Article 24 of that Convention, it will enter into force 90 days after notification, by the last Member State to complete that formality, of completion of the constitutional procedures required for its adoption.

Thus, advance application of the Convention within the meaning of Article 24 (4) cannot provide a legal basis for the assignment to the Court of Justice of jurisdiction in respect of interpretation. Neither would adoption of the Protocol by all the Member States entitle the Court of Justice to interpret the provisions of the Convention as long as the latter had not entered into force.

Article 8

This Article stipulates that the Protocol is open to accession by any State which becomes a member of the European Union. Conversely, a State which is not a member of the European Union can accede neither to the Convention nor to the Protocol.

With regard to the procedures for acceding to the Protocol, the Article makes provision in particular for simplified procedures for modifying the list of the highest courts contained in Article 2 (1) (a), following the designation of those of a new Member State, in accordance with the principle laid down in Article 2 (2).

Between the date of deposit of the instrument of accession and the date of entry into force of the Protocol with respect to the acceding Member State, the Council is to adopt the modifications to be made to the list of highest courts.

Article 9

This Article concerns the procedure for amending the Protocol.

Only Member States which are party to the Protocol, and the Commission, are entitled to propose amendments.

The Council recommends adoption by the Member States, in accordance with their respective constitutional requirements, of the amendments it adopts.

This procedure does not apply to the simple modification of the list of highest courts.

Article 10

This Article entrusts to the Secretary-General of the Council the role of depositary of the Protocol.

The Secretary-General is to inform the Member States of all notifications concerning the Protocol and ensure their publication in the 'C` series of the Official Journal of the European Communities.

(1) Opinion delivered on 11 April 1997 (not yet published in the Official Journal).

(2) See p. 17 of this Official Journal.