Judgment of the Court of 29 October 1980. - Boussac Saint-Frères SA v Brigitte Gerstenmeier. - Reference for a preliminary ruling: Amtsgericht Berlin-Schöneberg - Germany. - Free movement of capital. - Case 22/80.



European Court reports 1980 Page 03427

Greek special edition Page 00375

Swedish special edition Page 00419

Finnish special edition Page 00425



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . REFERENCE FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY , ART . 177 )

2 . COMMUNITY LAW - PRINCIPLES - EQUAL TREATMENT - DISCRIMINATION ON GROUNDS OF NATIONALITY - PROHIBITION - COVERT DISCRIMINATION - INCLUSION

( EEC TREATY , ART . 7 )

3 . COMMUNITY LAW - PRINCIPLES - EQUAL TREATMENT - DISCRIMINATION ON GROUNDS OF NATIONALITY - SIMPLIFIED PROCEDURE FOR RECOVERY OF DEBTS DRAWING A DISTINCTION BASED ON CURRENCY IN WHICH EXPRESSED - PERMISSIBILITY

( EEC TREATY , ART . 7 )

Summary

1 . ALTHOUGH THE COURT MAY NOT EXPRESS AN OPINION IN THE CONTEXT OF ARTICLE 177 OF THE TREATY ON THE VALIDITY OF A NATIONAL LAW , IT IS NEVERTHELESS COMPETENT , FOR THE PURPOSES OF COOPERATION WITH THE NATIONAL COURTS , TO EXTRACT FROM THE QUESTION THOSE ASPECTS OF COMMUNITY LAW THE INTERPRETATION OF WHICH WILL ENABLE THE NATIONAL COURT TO RESOLVE THE PROBLEMS WITH WHICH IT IS CONCERNED .

2 . ARTICLE 7 OF THE TREATY PROHIBITS ANY DISCRIMINATION ON GROUNDS OF NATIONALITY WITHIN THE FIELD OF APPLICATION OF THE TREATY . THAT ARTICLE FORBIDS NOT ONLY OVERT DISCRIMINATION BY REASON OF NATIONALITY BUT ALSO ALL COVERT FORMS OF DISCRIMINATION WHICH , BY THE APPLICATION OF OTHER CRITERIA OF DIFFERENTIATION , LEAD IN FACT TO THE SAME RESULT .

3 . ARTICLE 7 OF THE EEC TREATY DOES NOT PRECLUDE A NATIONAL RULE OF CIVIL PROCEDURE WHICH , WHILST AFFORDING ANY CREDITOR ESTABLISHED IN THE TERRITORY OF A MEMBER STATE THE OPPORTUNITY TO SUE FOR PAYMENT OF A DEBT IN WHATEVER CURRENCY IT IS EXPRESSED BY TAKING ORDINARY LEGAL PROCEEDINGS BEFORE THE COURTS , PROVIDES FOR A SIMPLIFIED PROCEDURE FOR RECOVERY WHICH IS NOT AVAILABLE TO A CREDITOR PROSECUTING A CLAIM FOR PAYMENT OF A DEBT EXPRESSED IN A FOREIGN CURRENCY AGAINST A DEBTOR ESTABLISHED ON NATIONAL TERRITORY .

Parties

IN CASE 22/80

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE AMTSGERICHT ( LOCAL COURT ) BERLIN-SCHONEBERG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BOUSSAC SAINT-FRERES S.A ., LILLE ( FRANCE ),

AND

BRIGITTE GERSTENMEIER , EUSKIRCHEN ( FEDERAL REPUBLIC OF GERMANY ),

Subject of the case

ON THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY ,

Grounds

1 BY AN ORDER DATED 24 NOVEMBER 1979 , WHICH WAS RECEIVED AT THE COURT ON 14 JANUARY 1980 , THE AMTSGERICHT ( LOCAL COURT ) BERLIN-SCHONEBERG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE APPLICATION OF ARTICLE 7 OF THE TREATY .

2 A CLAIM BY AN UNDERTAKING ESTABLISHED IN FRANCE , WHICH HAD SOLD AND DELIVERED SOME TEXTILES TO A TRADER RESIDENT IN THE FEDERAL REPUBLIC OF GERMANY , FOR PAYMENT OF THE BALANCE OF THE INVOICE PRICE RELATING TO THAT CONTRACT BY MEANS OF THE SUMMARY PROCEDURE KNOWN AS THE ' ' MAHNVERFAHREN ' ' HAS BEEN BROUGHT BEFORE THE GERMAN COURT . THAT PROCEDURE ENABLES THE CREDITOR TO OBTAIN AN ORDER TO PAY A SPECIFIC SUM SIMPLY AND EXPEDITIOUSLY . AFTER THE CLAIM HAS BEEN LODGED THE DEBTOR IS NOT SUMMONED OR GIVEN NOTICE TO APPEAR BEFORE THE COURT ; HE MAY HOWEVER RAISE AN OBJECTION AFTER HE HAS BEEN SERVED WITH THE SUMMARY ORDER TO PAY ( MAHNBESCHEID ) MADE BY THE COURT ON THE BASIS OF A PRINTED FORM WHICH THE CREDITOR HAS COMPLETED ; IN THE ABSENCE OF ANY OBJECTION THE ORDER TO PAY IS CONVERTED ON APPLICATION BY THE CREDITOR INTO AN ORDER FOR ENFORCEMENT ( VOLLSTRECKUNGSBESCHEID ).

3 THE AMTSGERICHT TOOK INTO ACCOUNT THE FACT THAT BEFORE 1 JULY 1977 A CLAIM COULD BE MADE USING THAT PROCEDURE FOR PAYMENT OF A DEBT EXPRESSED IN NATIONAL OR FOREIGN CURRENCY , WHILST SINCE THE ENTRY INTO FORCE ON THAT DATE OF THE SO-CALLED SIMPLIFYING LAW OF 3 DECEMBER 1976 THAT PROCEDURE MAY NO LONGER BE USED FOR OBTAINING PAYMENT OF A DEBT FROM A DEBTOR ESTABLISHED ON GERMAN TERRITORY IF THAT DEBT IS EXPRESSED IN FOREIGN CURRENCY , WHEREAS THE PROCEDURE REMAINS AVAILABLE FOR OBTAINING PAYMENT OF DEBTS EXPRESSED IN FOREIGN CURRENCY FROM A DEBTOR ESTABLISHED ABROAD .

4 IN THOSE CIRCUMSTANCES THE NATIONAL COURT HAS REFERRED TO THE COURT THE QUESTION WHETHER THAT AMENDMENT TO GERMAN PROCEDURAL LAW IS A MEASURE DISCRIMINATING AGAINST CREDITORS ESTABLISHED IN OTHER MEMBER STATES OF THE COMMUNITY WHICH IS TO BE REGARDED AS INEFFECTIVE AS FAR AS THEY ARE CONCERNED BECAUSE IT INFRINGES ARTICLE 7 OF THE TREATY .

5 ALTHOUGH THE COURT MAY NOT EXPRESS AN OPINION IN THE CONTEXT OF ARTICLE 177 OF THE TREATY ON THE VALIDITY OF A NATIONAL LAW , IT IS NEVERTHELESS COMPETENT , FOR THE PURPOSES OF COOPERATION WITH THE NATIONAL COURTS , TO EXTRACT FROM THE QUESTION THOSE ASPECTS OF COMMUNITY LAW THE INTERPRETATION OF WHICH WILL ENABLE THE NATIONAL COURT TO RESOLVE THE PROBLEMS WITH WHICH IT IS CONCERNED .

6 IT IS CLEAR FROM THE FILE ON THE CASE THAT THE AIM OF THE SIMPLIFYING LAW , WHICH IS THE CAUSE OF THE GERMAN COURT ' S UNCERTAINTY , WAS TO RATIONALIZE THE SUMMARY PROCEDURE FOR PAYMENT OF DEBTS BY RECOURSE TO COMPUTERIZATION . SINCE A TECHNICAL STUDY SHOWED THAT THE INCLUSION OF CLAIMS EXPRESSED IN FOREIGN CURRENCY IN AN ELECTRONIC PROCESSING SYSTEM WOULD CAUSE EXCESSIVE DIFFICULTIES , THE GERMAN AUTHORITIES DECIDED , IN PRINCIPLE , TO RESTRICT THE FIELD OF APPLICATION OF THE SUMMARY PROCEDURE FOR PAYMENT TO CLAIMS RELATING TO DEBTS EXPRESSED IN GERMAN CURRENCY . THEY NEVERTHELESS EXCEPTED FROM THAT RULE CLAIMS FOR THE PAYMENT OF DEBTS EXPRESSED IN FOREIGN CURRENCY AGAINST DEBTORS ESTABLISHED ON THE TERRITORY OF ONE OF THE CONTRACTING STATES PARTIES TO THE BRUSSELS CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ON THE GROUND THAT THE PROVISIONS OF THAT CONVENTION MADE SUCH AN EXCEPTION NECESSARY .

7 THE FILE ON THE CASE ALSO MAKES IT CLEAR THAT ORDINARY LEGAL PROCEEDINGS REMAIN AVAILABLE TO CREDITORS WHO ARE UNABLE TO TAKE ADVANTAGE OF THE SIMPLIFIED ' ' MAHNVERFAHREN ' ' . THOSE ORDINARY PROCEEDINGS HAVE TO BE INSTITUTED BY A CREDITOR WHO , HAVING OBTAINED AN ORDER TO PAY AT THE OUTCOME OF THE ' ' MAHNVERFAHREN ' ' , MEETS WITH OPPOSITION FROM THE DEBTOR .

8 IN THOSE CIRCUMSTANCES THE QUESTION REFERRED TO THE COURT BY THE NATIONAL COURT MUST BE UNDERSTOOD AS ASKING WHETHER ARTICLE 7 OF THE TREATY PRECLUDES A NATIONAL RULE OF CIVIL PROCEDURE WHICH , WHILST AFFORDING ANY CREDITOR ESTABLISHED ON THE TERRITORY OF A MEMBER STATE THE OPPORTUNITY TO SUE FOR PAYMENT OF A DEBT IN WHATEVER CURRENCY IT IS EXPRESSED BY TAKING ORDINARY LEGAL PROCEEDINGS BEFORE THE COURTS , PROVIDES FOR A SIMPLIFIED PROCEDURE FOR RECOVERY WHICH IS NOT AVAILABLE TO A CREDITOR PROSECUTING A CLAIM FOR PAYMENT OF A DEBT EXPRESSED IN A FOREIGN CURRENCY AGAINST A DEBTOR ESTABLISHED ON NATIONAL TERRITORY .

9 ARTICLE 7 OF THE TREATY PROHIBITS ANY DISCRIMINATION ON GROUNDS OF NATIONALITY WITHIN THE FIELD OF APPLICATION OF THE TREATY . THAT ARTICLE FORBIDS NOT ONLY OVERT DISCRIMINATION BY REASON OF NATIONALITY BUT ALSO ALL COVERT FORMS OF DISCRIMINATION WHICH , BY THE APPLICATION OF OTHER CRITERIA OF DIFFERENTIATION , LEAD IN FACT TO THE SAME RESULT .

10 THERE IS NO DOUBT THAT A NATIONAL LAW WHICH SUBJECTS ACCESS TO THE COURTS TO CONDITIONS RELATING TO THE CURRENCY IN WHICH DEBTS ARE EXPRESSED MIGHT IN FACT PLACE CREDITORS ESTABLISHED IN THE OTHER MEMBER STATES IN A LESS FAVOURABLE POSITION THAN CREDITORS ESTABLISHED ON NATIONAL TERRITORY AND THUS CONSTITUTE A BARRIER TO TRADE IN THE COMMON MARKET WHICH WOULD PRINCIPALLY AFFECT THE NATIONALS OF THE OTHER MEMBER STATES .

11 THE GERMAN GOVERNMENT , WHICH HAS SUBMITTED WRITTEN OBSERVATIONS TO THE COURT , HAS MAINTAINED THAT A LAW SUCH AS THE ONE AT ISSUE IN THIS CASE CANNOT BE DISCRIMINATORY , SINCE THE DISTINCTION BASED ON THE CURRENCY IN WHICH THE DEBT IS EXPRESSED IS JUSTIFIED ON OBJECTIVE GROUNDS , THE ELECTRONIC PROCESSING PROVIDED FOR BY THE GERMAN LEGISLATION WITH A VIEW TO SIMPLIFYING THE ' ' MAHNVERFAHREN ' ' BEING IMPOSSIBLE IN THE CASE OF DEBTS EXPRESSED IN FOREIGN CURRENCY .

12 THAT ARGUMENT IS NOT CONVINCING . ALTHOUGH GERMAN LEGISLATION MAKES THE ' ' MAHNVERFAHREN ' ' AVAILABLE FOR OBTAINING PAYMENT OF DEBTS EXPRESSED IN FOREIGN CURRENCY FROM DEBTORS ESTABLISHED ON THE TERRITORY OF THE OTHER CONTRACTING STATES PARTIES TO THE BRUSSELS CONVENTION , AND ALTHOUGH IT IS AN ESTABLISHED FACT THAT THE IMPLEMENTATION OF THAT RULE REQUIRES SUCH CLAIMS MADE PURSUANT TO THE ' ' MAHNVERFAHREN ' ' TO BE DEALT WITH MANUALLY , THE NEED TO PROVIDE FOR THE ELECTRONIC PROCESSING OF ALL CLAIMS SUBJECT TO THAT PROCEDURE CANNOT BE RELIED UPON IN RELATION TO THE RECOVERY OF DEBTS EXPRESSED IN FOREIGN CURRENCY FROM DEBTORS ESTABLISHED ON NATIONAL TERRITORY .

13 HOWEVER , THAT CONSIDERATION IS NOT SUCH AS TO RESOLVE THE PROBLEM COMPLETELY . A DISTINCTION BASED ON THE CURRENCY IN WHICH DEBTS ARE EXPRESSED , WHICH APPLIES ONLY TO THE SIMPLIFIED PROCEDURE FOR RECOVERY OF DEBTS , DOES NOT AMOUNT , EVEN INDIRECTLY , TO DISCRIMINATION ON GROUNDS OF NATIONALITY IF THE PARTIES TO THE CONTRACT ARE FREE TO SELECT THE CURRENCY IN WHICH THE DEBT IS EXPRESSED AND IF ORDINARY PROCEEDINGS REMAIN AVAILABLE TO CREDITORS ESTABLISHED ON THE TERRITORY OF THE OTHER MEMBER STATES , WHATEVER THE CURRENCY IN WHICH THE CLAIM IS EXPRESSED .

14 THE ANSWER TO THE QUESTION REFERRED TO THE COURT SHOULD THEREFORE BE THAT ARTICLE 7 OF THE TREATY DOES NOT PRECLUDE A NATIONAL RULE OF CIVIL PROCEDURE WHICH , WHILST AFFORDING ANY CREDITOR ESTABLISHED ON THE TERRITORY OF A MEMBER STATE THE OPPORTUNITY TO SUE FOR PAYMENT OF A DEBT IN WHATEVER CURRENCY IT IS EXPRESSED BY TAKING ORDINARY LEGAL PROCEEDINGS BEFORE THE COURTS , PROVIDES FOR A SIMPLIFIED PROCEDURE FOR RECOVERY WHICH IS NOT AVAILABLE TO A CREDITOR PROSECUTING A CLAIM FOR PAYMENT OF A DEBT EXPRESSED IN A FOREIGN CURRENCY AGAINST A DEBTOR ESTABLISHED ON NATIONAL TERRITORY .

Decision on costs

15 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE AMSTGERICHT BERLIN-SCHONEBERG BY ORDER OF 24 NOVEMBER 1979 , HEREBY RULES :

ARTICLE 7 OF THE EEC TREATY DOES NOT PRECLUDE A NATIONAL RULE OF CIVIL PROCEDURE WHICH , WHILST AFFORDING ANY CREDITOR ESTABLISHED IN THE TERRITORY OF A MEMBER STATE THE OPPORTUNITY TO SUE FOR PAYMENT OF A DEBT IN WHATEVER CURRENCY IT IS EXPRESSED BY TAKING ORDINARY LEGAL PROCEEDINGS BEFORE THE COURTS , PROVIDES FOR A SIMPLIFIED PROCEDURE FOR RECOVERY WHICH IS NOT AVAILABLE TO A CREDITOR PROSECUTING A CLAIM FOR PAYMENT OF A DEBT EXPRESSED IN A FOREIGN CURRENCY AGAINST A DEBTOR ESTABLISHED ON NATIONAL TERRITORY .