OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 2 July 1985

My Lords,

In these proceedings the Italian Supreme Court of Cassation has referred three questions relating to the interpretation of Article 39 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

The background to the reference can be shortly stated.

In 1979 Mr Pelkmans obtained a judgment from a court at Breda in the Netherlands for HFL 127400 plus interest and costs against Messrs Capelloni and Aquilini. Mr Pelkmans then obtained from the Court of Appeal in Brescia an order rendering that judgment enforceable in Italy. The judgment debtors appealed against that order in accordance with Article 36 of the Convention.

Mr Pelkmans' next step was to obtain, pursuant to Article 39, an order for protective measures authorizing him to sequester the immovable property of Messrs Capelloni and Aquilini. Sequestration of the property followed. He then sought confirmation of these measures under the procedure prescribed by Italian law and dismissal of the appeal by the two defendants. The defendants opposed the application for confirmation of the sequestration and asked that the order of sequestration be lifted. The Court of Appeal declared Mr Pelkmans' application to be inadmissible but rejected the applications by Messrs Capelloni and Aquilini, without apparently dealing with the appeal against the order authorizing enforcement. The defendants brought an appeal in cassation against that judgment and Mr Pelkmans cross-appealed.

The questions referred by the Supreme Court of Cassation are these:

‘(1) Are the protective measures against the property of the debtor which may be proceeded with in the event of his appealing against an order for the enforcement of decisions given in another Member State of the European Community subject to the procedural rules of municipal law, as regards the procedures for their implementation and the conditions for their validity and effectiveness, or did the States which acceded to the Brussels Convention intend to adopt a single legal instrument, identical in all the Contracting States, whose purpose is to ensure that the debtor cannot dispose of his property in the meantime, that purpose being satisfied once execution is levied after dismissal of an appeal under Article 37 of the Brussels Convention, without the need, in particular, for proceedings to confirm the protective measure?

(2) Notwithstanding that an order has already been made in a Contracting State declaring enforceable a judgment given in another Contracting State, is authorization required from the same court to enable protective measures to be taken against the property of the party against whom enforcement is sought, or may the applicant proceed directly with protective measures without the need for specific authorization?

(3) Are cases governed by Article 39 of the Brussels Convention also subject to the procedural rules of the State in which protective measures are adopted, which rules prescribe a non-extendible period, running from the date on which the party applying for those measures is in a position to proceed with them within which protective measures against property must be commenced or completed, or may that party proceed with such measures without limitation as to time, until such time as the competent judicial authority has adjudicated on the appeal referred to in Article 37 of the Convention?’

Article 39 reads as follows:

‘During the time specified for an appeal pursuant to Article 36 and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures taken against property of the party against whom enforcement is sought.

The decision authorizing enforcement shall carry with it the power to proceed to any such protective measures.’

Article 36 provides for an appeal against an order authorizing enforcement and lays down the periods within such an appeal may be instituted.

The first question begins by asking quite generally whether Article 39 creates a single Community procedure for protective measures or whether the protective measures envisaged by that provision are to be taken according to the national rules of civil procedure.

The United Kingdom maintains that the procedure concerned is governed entirely by municipal law. It appears to take the view that this principle is unqualified. The Commission also considers that in principle national law applies. In support of this contention it cites the following as examples of matters on which the Convention gives no guidance and which must therefore be governed by municipal law: the kind of protective measures to be taken, the assets which may be seized and their value, the question whether the judgment creditor may carry out the measures himself or whether he is required to act through the medium of an officer of the court or other agent, and so on. Nevertheless, it claims that there are exceptions to this rule: in addition to the exceptions which the Commission has set out in its answers to its second and third questions, it suggests that there may be other respects in which the wording of the Convention requires one and the same procedure to be followed in all the Contracting States.

The view that in principle the procedure in question is a matter of national law is also expressed in the Jenard Report (Official Journal 1979, C 59/1, p. 52).

As a general rule this seems to me to be right since clearly there are many matters relating to protective measures which are not dealt with by the Convention and which, in my view, can thus only be dealt with by the rules of national law.

On the other hand, there are equally clearly exceptions to this general rule. Thus, for example, the judgment creditor on an application for protective measures cannot be required to prove or even make out a prima facie case on the merits, even if he might otherwise have to do so under national law apart from the Convention. Such a requirement would run counter to the whole purpose of the Convention which, subject to certain specified exceptions, seeks to ensure that judgments falling within its terms may be recognized and enforced in the territory of other Contracting States with the minimum of formality and delay. Nor can the Court on such an application go into the factors relevant to the decision as to whether an order for enforcement should be made. They fall within the province of the court hearing the appeal under Article 36. There may be other exceptions which have not been adverted to in this case.

Subject to these matters, the procedure on an application for protective measures and the factors to be taken into account (e.g. the relevance of urgency and the risk of the judgment debtor's assets being removed from the jurisdiction) are for the national court to decide under national law and practice.

More specifically, the first question also asks whether national provisions requiring protective measures to be confirmed ex post facto by a second judicial decision can apply to measures taken under Article 39. This question is asked because under the Italian Code of Civil Procedure protective measures are taken in a number of stages. Initially a provisional court order is made after a summary consideration of the facts and arguments. That order, which may or may not be made ex parte, authorizes the judgment creditor to take the measures concerned within thirty days. A second hearing then takes place inter partes. In certain cases the judgment debtor is summoned to this hearing by the judgment creditor, whereas in other cases the court carries out this function. In either case the court must decide at the second hearing whether to confirm or set aside its initial order. It will adopt the latter course if it finds that the requirement of urgency is lacking.

Such a procedure of confirmatory orders is not peculiar to Italy. A similar procedure is apparently required to be followed in every case in Denmark. Netherlands, French and Luxembourg law also provide for such a procedure in many cases.

Both the Commission and the United Kingdom agree that such a procedure is not precluded by the Convention. Accordingly, in their view the normal provisions of national law apply to this matter.

I agree that the wording of the Convention does not oust the rules of municipal law on this matter either expressly or by necessary implication. I therefore accept the view put forward by the Commission and the United Kingdom. However, for the reasons that I have already given, during the confirmatory procedure the court may not require the judgment creditor to make out a prima facie case on the substance; nor may it have regard to matters which might preclude a judgment of another Contracting State being enforced under the Convention.

On the second question the Commission and the United Kingdom are not agreed.

The Commission takes the second paragraph of Article 39 to mean that the decision authorizing enforcement is the order authorizing protective measures. On this view that decision automatically confers on the judgment creditor the power to proceed to protective measures. No further judicial order or decision is said to be necessary. The Commission claims to find support for this construction in the Jenard Report (p. 52) and the Schlosser Report (Official Journal 1979, C 59/71, pp. 134-135).

In line with its submissions on the first question, the United Kingdom claims, on the other hand, that this matter is governed entirely by domestic procedural law. It construes the provision concerned to mean that after the decision authorizing enforcement the appropriate court may authorize protective measures according to the national rules of procedure. Thus a separate judicial order relating specifically to protective measures will be necessary in those States where the rules of civil procedure require it. The United Kingdom nevertheless accepts that, if there are Contracting States in which a decision for the enforcement of a judgment automatically authorizes the judgment creditor to take protective measures, then no separate judicial order authorizing protective measures will be necessary in those States.

That both of these positions are arguable is reflected in the implementing measures adopted by the Contracting States. The majority appear to have adopted the approach advocated by the United Kingdom. That interpretation has also been upheld by a number of Italian courts. On the other hand, under the German legislation implementing the Convention the decision authorizing enforcement automatically contains within it the authorization to the judgment creditor to take protective measures. Some Italian courts have also adopted the same view as the Commission.

In my opinion, however, the correct reading of the Article is that during the period provided for appealing against an order made under Article 31, no measures of enforcement may be taken other than such protective measures (against the property of the party against whom enforcement is sought) as are available under national law. A plaintiff who has obtained an order for enforcement may, under the Convention, proceed to those measures by whatever route national law provides. If national rules enable him, e.g., to seize property without further order, he may do so. If national rules require a further order of the court, such an order must be obtained either from the court authorizing enforcement or from some other competent court. In some Member States such protective measures may be made in precise terms, in respect of specific property and subject to wellestablished conditions; they may vary according to the circumstances. Some property may not be available for seizure as a matter of national law. I cannot see that the Convention has abolished the power of the national courts to go into these questions by enabling protective measures to be automatically taken merely because an enforcement order has been made. Thus in the present case it seems to me that the Italian confirmatory procedure is not rendered inapplicable in a case to which the Convention applies by a provision as general and imprecise as that contained in the second paragraph of Article 39. I therefore take the view that whether a further application is needed for protective measures is a matter of national law.

The background to the third question is that under Article 675 of the Italian Code of Civil Procedure an order authorizing protective measures lapses after 30 days if it is not executed within that period. Messrs Capelloni and Aquilini have argued that the protective measures taken by Mr Pelkmans were unlawful in that they did not comply with this provision.

Once again the United Kingdom maintains that the answer is to be found exclusively in national law. The Commission on the other hand maintains that the right of the judgment debtor to carry out the protective measures subsists throughout the period specified in the opening words of Article 39.

I do not accept the Commission's view. The primary purpose of the opening words of Article 39 is to define the period during which no measures of enforcement may be taken. Article 39 then goes on to provide that during that period protective measures may be taken. It does not follow, however, that the judgment creditor must be entitled to take such measures throughout the period concerned.

The Commission also argues that to apply the 30-day rule to protective measures taken under Article 39 would lead to unfair consequences. The reason is said to be that the judgment debtor might appeal against the enforcement order more than 30 days after the protective measures have been authorised. Thus, the Commission argues, the judgment creditor may not know whether he needs to take protective measures until it is too late. This may be so. The remedy is for the plaintiff who has obtained an order for protective measures to carry them out within the period prescribed by national law, in the instant case 30 days.

Accordingly, I take the view that the matter referred to in the third question is governed exclusively by national law.

In the light of these considerations I am of the opinion that the questions referred by the Supreme Court of Cassation should be answered as follows:

(1) The protective measures provided for by Article 39 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters are governed by the procedural rules of national law except to the extent tht the Convention expressly or by necessary implication requires otherwise. Thus, at no stage of the procedure relating to protective measures may the judgment creditor be required to make out a prima facie case on the substance; nor may the court have regard to matters which might preclude a judgment of another Contracting State being enforced under the Convention. Subject to that overriding principle, a rule of national law whereby protective measures are subject to confirmation by the courts may be applied to measures taken pursuant to Article 39.

(2) Whether or not, after obtaining a decision authorizing enforcement, a judgment creditor requires specific authorization to take protective measures is a matter of national law.

(3) Article 39 does not preclude a provision of national law prescribing a non-extendible period during which protective measures may be carried out from applying to cases governed by that Article.

The Commission and the United Kingdom Government should bear their own costs.