Opinion of Mr Advocate General La Pergola delivered on 2 February 1999. - Unibank A/S v Flemming G. Christensen. - Reference for a preliminary ruling: Bundesgerichtshof - Germany. - Brussels Convention - Interpretation of Article 50 - Meaning of 'document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State' - Document drawn up without any involvement of a public officer - Articles 32 and 36. - Case C-260/97.



European Court reports 1999 Page I-03715



Opinion of the Advocate-General

1 In these proceedings two questions have been referred to the Court on the interpretation of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter `the Brussels Convention' or `the Convention'). (1) The first is concerned with the term `authentic instrument' in Article 50 of the Convention. The second relates to Article 32(2) of the Convention and specifically to the question whether it is necessary for a debtor to remain resident in the State in which the proceedings are commenced.

Legislative and factual context and the questions submitted

2 The provisions of which an interpretation is sought are Article 50 and Article 32 of the Brussels Convention, 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 to the Brussels Convention (2) and by the Convention of 25 October 1982 on the accession of the Hellenic Republic to the Brussels Convention. (3)

Article 50 is worded as follows:

`A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall, in another Contracting State, have an order for its enforcement issued there, on application made in accordance with the procedures provided for in Articles 31 et seq. The application may be refused only if enforcement of the instrument is contrary to public policy in the State addressed.

The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin.

The provisions of Section 3 of Title III shall apply as appropriate.'

The first sentence of the first paragraph of Article 50 was amended to read as follows by Article 14 of the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic to the Brussels Convention: (4)

`A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall, in another Contracting State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 31 et seq.'

Following that amendment, (5) Article 50 of the Brussels Convention has exactly the same wording as Article 50 of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters (6) (hereinafter `the Lugano Convention').

Article 32(2) of the Brussels Convention, with which the second question is concerned, provides:

`The jurisdiction of local courts shall be determined by reference to the place of domicile of the party against whom enforcement is sought. If he is not domiciled in the State in which enforcement is sought, it shall be determined by reference to the place of enforcement.'

3 The events which gave rise to the main proceedings may be summarised as follows: Unibank A/S (`Unibank') is a bank governed by Danish law established in Arhus, Denmark. It has a claim against Mr Christensen who, between 1990 and 1992 signed three acknowledgements of indebtedness (Gældsbrev) in its favour for sums of DKR 270 000, DKR 422 000 and DKR 138 000. The documents at issue are typewritten and bear the signature of a third person - an employee of the bank - who witnessed the debtor's signature. The documents expressly state that they may be used as a basis for levying execution; in that connection reference is made to Article 478 of the Danish Code of Civil Procedure. According to the order for reference, those sums are now due and payable.

4 When the documents were drawn up, the debtor lived in Denmark. He then moved to Weiterstadt in Germany, where Unibank presented the three documents to him for payment. At the request of the bank, the German court - the Landgericht Darmstadt - authorised enforcement. Mr Christensen appealed against that decision, contending, first, that he had partially discharged the debt and, second, that there was an agreement for payment of the outstanding balance by instalments. The debtor also stated that he had left Germany, but gave no new address. The appeal court set aside the decision of the lower court and upheld Mr Christensen's objection: the reasons given related to the fact that it was impossible to levy execution in Germany since the debtor no longer resided there.

5 In response to that judgment Unibank appealed to the Bundesgerichtshof, which considered it necessary to seek a preliminary ruling from the Court on the following questions:

`1. Is an acknowledgment of indebtedness signed by a debtor without the involvement of a public official - such as the Gældsbrev under Danish law (Paragraph 478(1)(5) of the Danish Code of Civil Procedure) - an authentic instrument within the meaning of Article 50 of the Brussels Convention, if that acknowledgment of indebtedness expressly specifies that it can serve as the basis for enforcement and if it can constitute the basis for enforcement under the law of the State in which it was drawn up, albeit subject to the condition that the court with jurisdiction to enforce it may refuse the creditor's application for enforcement if, as a result of objections to the basis for enforcement, there are doubts as to whether enforcement proceedings should be continued?

If the answer to Question 1 is in the affirmative:

2. Can an application for recognition of a decision or authentic instrument submitted to a court having local jurisdiction within the meaning of Article 32(2) of the Brussels Convention be rendered inadmissible or unfounded by reason of the fact that, while appeal proceedings (Article 36 of the Brussels Convention) are pending, the debtor has left the State in which the proceedings were instituted and his new place of residence is unknown?'

The first question

6 By its first question the national court seeks guidance as to the interpretation of the term `authentic instrument' used in Article 50 of the Brussels Convention. In particular, the Court is asked to rule whether - to be classifiable as an authentic instrument and therefore be enforceable in other Contracting States - a document must be attested by a public official, or at least by some public authority, when it is created.

Unibank, in its written observations, contends that the answer must be negative: in its opinion, Article 50 of the Convention covers every document which can be classified as enforceable under the national law of the place where it came into being. In its view it is unnecessary for the document to have been drawn up by, or with the involvement of, a public official. That argument essentially attaches primary importance to the effectiveness of the instrument - in particular its availability as a basis for enforcement under the law of the place of origin - rather than to the rules governing its creation.

The opposite view is taken by Mr Christensen, the Commission and the German and United Kingdom Governments. They all consider that, as a category, the authentic instruments provided for in Article 50 of the Convention must be attested by a public official or by some other person empowered for that purpose. In other words, appropriate attestation is called for, and the procedures for it must be laid down by the law of the State in which the document is drawn up or registered.

7 In my opinion the latter view is correct. First, a textual argument supporting it may be derived from the wording of Article 50 itself: that provision refers to a `document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State'. (7) The expression `formally drawn up or registered' gives the idea of a procedure whereby the instrument is formalised with the participation not only of the interested parties but also of another person specifically called on to record the document and to endow it with the characteristics of an `authentic instrument'. The wording of the relevant provision - in particular the term `formally drawn up or registered' - thus gives the impression that it relates to a category of documents which is the result of the exercise of the function of public recordal, which is entrusted by law to public officials and other persons whose authority is defined by legislation. (8)

This conclusion also seems to me to be the only one compatible with the rationale of the Convention. The latter's purpose is to `to facilitate, to the greatest possible extent, the free movement of judgments by providing for a simple and rapid enforcement procedure' (9) A document `formally drawn up or registered as an authentic instrument and ... enforceable in one Contracting State' is treated in Article 50 of the Convention in the same way as a judgment. Such instruments can therefore, as it were, enjoy `free movement' in the same way as judgments, in the sense that, by virtue of Article 50 of the Convention, they are afforded preferential treatment as regards enforcement in other Contacting States. Indeed, it may be said that the rules laid down by the Convention for authentic instruments are more favourable than those applicable to judgments: as indicated in Article 50 itself, an application for an order for enforcement of an authentic instrument may be refused only if enforcement of the instrument is contrary to public policy in the State addressed, whereas in the case of judgments other reasons may be invoked for rejecting applications. (10)

However, in view of the consequences of classifying a document as an `authentic instrument' it is appropriate to examine that category of document carefully. An authentic instrument is in fact placed on the same footing as a judgment. And that assimilation is justified precisely because an authentic instrument emanates from a public official exercising powers of reasoning and judgment and is therefore a manifestation - an indirect manifestation, merely for purposes of documentation - of public authority. Indeed, it is solely because of that reasoning and judgment and the fact that they are exercised by particularly skilled people - acting as agents of the administration or as private individuals vested with public authority - that the Convention provides for an `authentic instrument' to produce certain effects. Those effects, therefore, are justified only because they are associated with a firm presumption of correctness and accuracy inherent in operations undertaken in a representative capacity by specialists in public documentation. And it is for that reason that the term `authentic instrument' must be applied not to any document recording the expression of a person's intent but only to those for which appropriate authentication procedures are laid down, justifying the treatment of documents within that category as if they were judgments. Conversely, it would not be consonant with the aim and spirit of the Convention for the Contracting States to have to accord to private documents, which had not been authenticated in any way, the same treatment as that afforded to decisions given by judicial authorities.

8 Confirmation of the foregoing considerations may be found in the Jenard-Möller Report (11) on the Lugano Convention. With regard to Article 50 of that Convention, which corresponds to the provision at issue here and has essentially the same wording, (12) the Report states that an `authentic instrument' within the meaning of that provision is one that satisfies the following conditions:

- `the authenticity of the instrument should have been established by a public authority,

- this authenticity should relate to the content of the instrument and not only, for example, the signature,

- the instrument has to be enforceable in itself in the State in which it originates.' (13)

Therefore, according to that report - which legal writers (14) too regard as a helpful guide to the interpretation of Article 50 of the Brussels Convention - an authentic instrument is only a document which has been perfected by the involvement of a public authority called on specifically to authenticate the instrument, in the sense of endowing it with reliability and authenticity, regarding not only extrinsic requirements such as the date or signature but also the requirements concerning the content of the document itself.

9 In the light of the foregoing considerations, I do not think it is possible for an acknowledgment of indebtedness drawn up without any attestation by a public official - like the one at issue in this case - to constitute an `authentic instrument' within the meaning of Article 50 of the Convention. Authenticity is an essential requirement of the category of documents governed by that provision; and - for the reasons which I have set out above - there can be no authenticity unless a public authority is involved when the document is brought into being.

10 A last aspect of the question raised by the national court must now be considered. It is clear from the wording of the question that the referring court is asking whether mere enforceability in the State of origin is in itself sufficient to bring the document in question within the scope of Article 50. The answer must, in my opinion, be negative: under the abovementioned provision, it is not sufficient for the document to be enforceable, it must also be an authentic instrument in the sense defined above. That removes from the scope of Article 50 those acts which might perhaps serve as a basis for levying execution in the State of origin but are nevertheless not authentic instruments under the law of that State. (15)

The second question

11 An answer to the second question is requested by the national court only in the event of the first being answered in that affirmative, that is if this Court should consider that an acknowledgment of indebtedness drawn up without the involvement of a public official constitutes an authentic instrument within the meaning of Article 50 of the Convention. In view of the answer which I think should be given to the first question, it is unnecessary to answer the second. However, for the sake of thoroughness, I shall examine the second question as well.

The question seeks essentially to ascertain whether a legal action can be pursued in another Contracting State only if the defendant continues to reside in that State, where proceedings were commenced. In my view the answer must be negative. It is clear from Article 31 et seq. of the Convention that it is for the creditor to choose in what Contracting State to lodge an application for enforcement. In particular, Article 32(2) states that `The jurisdiction of local courts shall be determined by reference to the place of domicile of the party against whom enforcement is sought. If he is not domiciled in the State in which enforcement is sought, it shall be determined by reference to the place of enforcement.' That provision does not indicate the date to which reference should be made in applying the rule of the forum debitoris. It seems to me, however, that it is beyond doubt that such date can only be that of lodgment of the application, with the result that no supervening changes in the factual situation which gave rise to the jurisdiction of the court seised can have any impact on the jurisdiction thus determined. The creditor must be able to rely on the situation as it existed when he made his application. Otherwise, the fundamental requirement of legal certainty would be undermined. Also, if the jurisdiction of the court seised were to be removed as a result of a change of residence of the debtor after the application was submitted, the debtor could easily evade enforcement proceedings merely by changing his residence. For those reasons, I consider that a change of residence on the part of a debtor after an application for enforcement has been lodged has no effect on the admissibility of that application.

Conclusion

12. In the light of the foregoing observations, I suggest that the Court give the following answers to the questions referred to it by the Bundesgerichtshof:

(1) The first paragraph of Article 50 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that an acknowledgement of indebtedness which has not been authenticated by a competent public authority does not constitute a `document which has been formally drawn up or registered as an authentic instrument and is enforceable in [a] Contracting State'.

(2) Article 32(2) of the same Convention must be interpreted as meaning that an application for an order for enforcement does not become inadmissible or unfounded by reason of the fact that a debtor leaves the territory of the State in which enforcement is sought after bringing an appeal against that application.

(1) - OJ 1972 L 299, p. 32.

(2) - OJ 1978 L 304, p. 1.

(3) - OJ 1982 L 388, p. 1.

(4) - OJ 1989 L 285, p. 1.

(5) - That amendment is not applicable to the present case since it came into force in Germany in 1994 whereas the acknowledgements of indebtedness at issue here date back to 1990 and 1992.

(6) - OJ 1988 L 319, p. 9.

(7) - Emphasis added.

(8) - Legal writers include under the heading of `authentic instruments' those issued by public officials, registrars, notaries, judicial officers and so forth (see G.A.L. Droz, Compétence Judiciaire et Effets des Jugements dans le Marché Commun, Paris 1972, p. 391). The author states that `in fact, the authentic instruments referred to in Article 50 will be first and foremost notarial instruments'.

(9) - See Case C-414/92 Solo Kleinmotoren [1994] ECR I-2237, paragraph 20, and Case 148/84 Deutsche Genossenschaftbank [1985] ECR 1981, paragraph 16.

(10) - See the combined effect of Articles 34(2) and 27 and 28 of the Convention.

(11) - OJ 1990 C 189, p. 57.

(12) - As stated in point 2, as a result of the amendments to the Brussels Convention made following the accession of the Kingdom of Spain and the Portuguese Republic, Article 50 of that Convention has exactly the same wording as the corresponding provision of the Lugano Convention. However, even before that amendment, the differences were entirely insignificant and did not affect the substance of the provision: the expression `have an order for enforcement issued' was simply replaced by the expression `declared enforceable'.

(13) - Paragraph 72 (emphasis added). The same paragraph of the report states that `commercial bills and cheques' are not covered by Article 50.

(14) - See V.H. Gaudement-Tallon, Les Conventions de Bruxelles et de Lugano, Paris 1993, p. 417.

(15) - See, to that effect, the Jenard-Möller Report, cited above, paragraph 72, which, by way of example, excludes from the scope of Article 50 `settlements occurring outside courts which are known in Danish law and [are] enforceable under that law' (emphasis added).