III —

Consequently, since the examination has hitherto shown that there are important reasons for assuming the use of an independent concept of ‘ordinary appeal’ in the Convention on Jurisdiction, the task of establishing the criteria which are decisive with regard to the common concept still remains. This is certainly not easy since the Convention provides but few indications in this respect. If however these indications are evaluated and the objectives and structure of the Convention and the general principles which stem from the corpus of the national legal systems are taken into consideration, as stated in the abovementioned judgment in Case 29/76, sufficiently practicable statements may be made. (a) It is necessary in this connexion to start by returning to a point which has already been mentioned, that is, the need to choose a wide interpretation of the concept in question. It is true that it would be possible to state in opposition to this and in favour of a narrow interpretation that the objective of the Convention is to ensure the recognition and enforcement of foreign judgments on a broad scale, which seems to tell against making a stay of proceedings easier to obtain. Other considerations however must take precedence. I have already mentioned, and in this connexion reference should be made to the Jenard Report and to Droz (Competence Judiciaire et Effets des Jugements dans le Marché Commun (Jurisdiction and Effect of Judgments in the Common Market) p. 280), that the Convention concerns so to speak converting a national legal situation into a Community one; if a judgment is recognized it should have the effect in the State in which enforcement is sought which it also has in the State in which the judgment was given. A restrictive interpretation of the concept of ‘ordinary appeal’ would not meet that requirement; the danger would rather exist in this case that a judgment would be recognized abroad although a right has not arisen in the State in which the judgment was given because according to the view taken in that State an ordinary appeal has been lodged. In addition, the fact that where ordinary appeals exist it is not compulsory to stay the proceedings but that this is at the discretion of the court before which enforcement is sought tells in favour of a broad interpretation. In this way it will be possible to avoid consequences which might arise in the case of a wide interpretation but which are considered undesirable. On the other hand, if a restrictive interpretation were adopted it is certain that in many cases the protective aim of the provision, and I recall once again that the Convention does not provide for any claims for damages in the event of unjustified enforcement of the judgment, would not be fully attained. Finally, it is also necessary in this connexion to come back once more to the draft which has been drawn up for the accession of the three new Member States to the Convention on Jurisdiction. As I have already mentioned, it was deemed appropriate to include therein a provision according to which in view of the difficulties of delimitation which exist in the United Kingdom and in Ireland all appeals in those States are considered to be ordinary appeals. This, as shown by the Schlosser Report, is considered justifiable because the discretion given to the courts under Article 38 may be so exercised that equilibrium may be achieved in the application of Articles 30 and 38 in all the Contracting States. However, if this is so it is necessary in the interests of this equilibrium also to interpret liberally provisions of the Convention which are already applicable. (b) After this finding it is almost as easy to see in addition which criteria would be inappropriate in the present connexion. I must mention three criteria at this point which were also discussed extensively during the proceedings. (aa) The question whether the enforcement of a judgment is suspended by an appeal should be disregarded. In any case a judgment may only be enforced in another State if there is an enforceable right in the State in which the judgment was given. Article 38 is also based on this presupposition, which may be deduced from Article 31 of the Convention. Article 38 and the discretion which it confers on the court before which enforcement is sought would therefore be purposeless if only those appeals which suspend enforcement were to be considered as ordinary appeals. It may also also be said in this connexion that it is likewise impossible to make the question whether the lodging of an appeal might possibly lead to the suspension of the enforcement by the court the decisive factor. A decision of the court in the State in which the judgment was given on the suspension of execution is in fact provided for not only in the case of appeals which, like Berufung, must clearly be regarded as ordinary; it also occurs frequently in the case of extraordinary appeals, as the representative of the British Government stressed. Such a criterion would therefore certainly extend too far the bounds applicable to Article 38. (bb) Further, it does not seem to me to be appropriate to make the question of res judicata the decisive factor, in other words whether the lodging of an appeal prevents the decision from having the force of res judicata. If the question of res judicata is made the decisive factor, one indefinite concept is replaced by another. In fact the concept of res judicata in the Member States does not actually seem to be uniform. In addition, in several Member States it is linked precisely to the concept of ordinary appeal; in those States a judgment is said to have the force of res judicata if no ordinary appeal is possible or if the periods for lodging an ordinary appeal have expired (for example in Belgian and in Netherlands law). The use of the criterion of res judicita would therefore be incompatible with the basic concern previously stated, that it is necessary for the definition of the concept of ‘ordinary appeal’ to be based, in the interests of legal certainty and legal uniformity, on criteria which are not only simple but also clear. (cc) Finally, the question whether or not when certain appeals are lodged restrictions apply with regard to the reasons upon which the appeal is based, that is, the permissible ‘moyens’ (submissions), should also be disregarded. Otherwise both an appeal in cassation in the Netherlands and in Italy and Revision in German law would have to be considered as extraordinary appeals. I have however already pointed out that in their case it is undesirable to exclude the possibility of staying the proceedings because they may lead to the annulment of a judgment. (c) If we consider what criteria may positively come into consideration it appears quite quickly that there are really not many of them, in fact two or at most three. According to the meaning and purpose of the provision they should however also be sufficient and ensure a relatively easy application. (aa) An important indication seems to me to be the fact that Article 38 itself speaks of the time for an appeal. It is necessary to conclude from this that periods of time must apply to the lodging of ordinary appeals and in principle, periods of time which begin to run with delivery or service of the judgment. It is necessary however to go a step further and declare, as does the Government of the Federal Republic of Germany, that relatively short periods of time must be involved. It is impossible to object to this, as was attempted, that Article 38 thereby loses its raison d'etre, for periods of about three months, which may come in question in this connexion, are nevertheless long enough to show the importance of the question whether there should be a suspension of enforcement or not. Conversely, it is possible to refer, with regard to the requirement of relatively short periods of time, to the fact that the Convention is intended to facilitate enforcement and that therefore the suspension of enforcement must not be too protracted. In addition, a review of comparative law also indicates this. Thus very short periods of time apply to Berufung and Widerspruch in the case of default judgments, which are generally considered as ordinary appeals. If I am correct, they are between two weeks and three months long, with the exception of Luxembourg law in which in the case of default judgments given against parties who are not legally represented the period for the lodging of a Berufung, three months, must apparently be added to a possible period for the lodging of a Widerspruch, up to six months. It is likewise possible to determine what periods of time come into consideration in the case of an appeal in cassation, which is, the Court is aware, involved in the main action, with the aid of an examination of comparative law. In this connexion it appears that the periods of time which come into consideration here under the legal systems of the Member States are generally of between one month and three months from service or delivery of the judgment. Only in Italy, if I am correct, does the period of one year from ‘pubblicazione della sentenza’ (notification of the judgment) apply, and this moreover also in the case of a Berufung, if notice of the judgment is not served. This must however also be included in view of the abovementioned requirement that the concept of ‘ordinary appeal’ must be interpreted so that it covers everything which is classified as such under the national legal systems. Moreover it becomes clear at the same time with these observations on the need to observe relatively short periods of time that appeals which amount to the re-opening of the proceedings cannot come into consideration. In fact in such cases the relevant periods of time generally start to run from the moment at which the reason for the re-opening of the case becomes known and accordingly they do not preclude review of a judgment even after considerable time. In addition, it is also important in this connexion that in the legal systems of the Member States such appeals are unanimously designated as extraordinary. (bb) The question whether an appeal can have direct effects on the rights and duties of the parties which are concerned in the contested judgment should constitute a second important criterion. Accordingly, an ordinary appeal is involved only if the writ of execution may be amended when the appeal has been heard and it might thus happen that the judgment which has nevertheless been enforced was unjustified. In fact only in such cases is there a need to protect the judgment debtor. Cassation dans l'intérêt de la loi (appeal in cassation in the interests of the law) under French law could, if the basic objective laid down in Article 38 were taken into consideration, therefore certainly not be held to be an ordinary appeal. (cc) Finally, and this consideration may however be left open for the purposes of the dispute in the main action, it is still possible to consider attaching importance to the question whether an appeal brings the case before a court of the same level of jurisdiction and if it is therefore possible to speak of the continuation of the same proceedings but not of the start of fresh proceedings. This consideration, which was also put forward by the Government of the Federal Republic of Germany, obviously has in view appeals such as a complaint of unconstitutionality which may also be brought against judgments. It is in fact possible to consider attributing significance to it because in this connexion possibilities are involved which are only available in two Member States and which can certainly not be counted as ordinary appeals even in those States. For similar reasons, and this must likewise merely be briefly touched upon, it would also be necessary to exclude appeals in which, as in the case of Drittwiderspruchsklagen (objections raised by third parties) the interests of third parties are involved. Quite apart from the fact that in such cases too there are frequently no time-limits or very lengthy ones, a decisive factor with regard to this appraisal is that such appeals, where they exist, are likewise unanimously classified as extraordinary. There can be very little more to say from the point of view of Community law with regard to the criteria for determining whether ordinary or extraordinary appeals are involved, within the meaning of the Convention.