D.

Should the Court none the less consider giving a reply to the substance of the question referred to it by the Cour d'appel, Colmar, — the question is worded generally and does not consider whether or not the Brussels Convention is applicable — I beg leave to add some observations on the forms of appeal available when an order for enforcement is issued. The parties to the proceedings expressed differing views on the question whether the right of appeal available under Article 36 of the Brussels Convention excludes other forms of appeal available to interested third parties under national law. Deutsche Genossenschaftsbank, the Government of the Federal Republic of Germany and the Commission took the view that Article 31 et seq. of the Convention provide an exhaustive set of rules concerning possible forms of appeal and that provisions of national law are only available where express reference is made to them, such as in the first paragraph of Article 33 and in Article 35. Brasserie du Pêcheur and the Government of the Italian Republic, however, take the view that procedures available under national law are permissible in addition to the appeal provided for in Article 36 of the Convention; they state that it cannot be supposed that the Convention was intended to provide an appeal solely for the party against whom enforcement is sought and thereby exclude any means of redress for third parties whose rights might be affected. Since neither the wording of the Convention nor the travaux préparatoires indicate clearly how that question is to be answered, it is necessary for me to have recourse to the spirit and purpose of the Convention. In its judgment of 17 November 1984, ( 4 ) the Court of Justice recalled that: ‘... the purpose of the Convention is to limit the number of requirements to which ... enforcement ... may be subjected in another Contracting State. The Convention accordingly provides for a very simple enforcement procedure whilst giving the party against whom enforcement is sought an opportunity to lodge an appeal’. ( 5 ) The Court went on to state as follows: ‘The second paragraph of Article 37 provides that the judgment given on the appeal may be contested only by an appeal in cassation and, in the Federal Republic of Germany, by a Rechtsbeschwerde. Under the general scheme of the Convention, and in the light of one of its principal objectives which is to simplify procedures in the State in which enforcement is sought, that provision cannot be extended so as to enable an appeal in cassation to be lodged against a judgment other than that given on the appeal, for instance against a preliminary or interlocutory order requiring preliminary inquiries to be made’. ( 6 ) The Court's argument, which leads to the exclusion of all appeals not provided for in the Convention, is applicable a fortiori to this case. The aim of simplifying procedures in the State in which enforcement is sought and in particular the aim of harmonizing the laws of the Contracting States in that area would fail to be attained if procedures available under national law were admissible in addition to the appeals provided for in the Convention. Foreign enforceable instruments are to be equated with national enforceable instruments in a speedy, simple and uniform manner. It would be inconsistent with that objective if, in addition to the right of appeal under Article 36 of the Convention, further national appeals against an order for enforcement which differed in each Member State were admissible. If that were the case a party seeking enforcement in another Contracting State of an instrument drawn up in his favour in his own State would be faced in proceedings for enforcement by a multitude of national procedural obstacles in the form of additional forms of appeal. Accordingly, foreign enforceable instruments would not be equated in an uncomplicated manner with national enforceable instruments. In Article 220 of the EEC Treaty the Member States undertook to simplify the formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals. ( 7 ) The extension in intra-Community trade has necessarily led to an increase in the number of legal relationships involving parties in different countries and therefore inevitably in the number of situations where a conflict of laws may arise. For that reason the simplified recognition and enforcement of judgments of courts or tribunals — and authentic instruments — is in fact a necessary legal concomitant of the creation of a common market corresponding as closely as possible to an internal market. ( 8 ) Of course, the exclusion of procedures available under national law does not extend beyond the field of application of the uniform rules provided for in the Convention. Those rules simply relate to the issue of an order for enforcement of the foreign instrument and not the levying of execution itself. At that stage the law of the State in which the enforcement is effected is applicable. If the Court should decide to answer the substance of the question referred to it by the Cour d'appel, Colmar, I propose that the reply be given in the following manner: ‘The only permissible procedure for challenging an order for enforcement in one Contracting State of an instrument drawn up in another Contracting State is the right of appeal provided for in Article 36 of the Convention. That principle also applies where the national rules of procedure in one Contracting State provide that interested third parties may contest an order for enforcement.’