Opinion of Mr advocate general Mayras

delivered on 17 september 1980 ( 1 )

Mr President,

Members of the Court,

In the instant reference for a preliminary ruling the main action arises out of the sale by the Boussac Saint-Frères company, the large French textile manufacturer, of its products to its customer Mrs Gerstenmeier, the owner of a retail clothing business in Germany. Since Mrs Gerstenmeier had not paid her bill, which was made out in French francs, in full the creditor company commenced summary proceedings [Mahnverfahren] in the Amtsgericht [Local Court] Berlin-Schöneberg, the court having jurisdiction, for an order to pay.

The court before which those summary proceedings were brought was unable, as the plaintiff wished, to order Mrs Gerstenmeier to pay the outstanding balance, that is, an amount expressed in foreign currency. In fact Article 688 (1) of the Zivilprozessordnung (ZPO — Code of Civil Procedure) restricts the admissibility of such proceedings to payment of a sum expressed in national currency, at least where the debtor is not established in one of the Contracting States parties to the Brussels Convention of 27 September 1968 other than the Federal Republic. The Amtsgericht Berlin-Schöneberg preferred to stay the proceedings and, after having explained that this restriction was introduced by a Law of 3 December 1976, which entered into force on 1 July 1977, referred to the Court for a preliminary ruling pursuant to the second paragraph of Article 177, “the question whether that amendment to the German Code of Civil Procedure in relation to creditors from other Member States of the European Economic Community is a discriminatory measure and thus ineffective in relation to such claimants as being contrary to Article 7 of the Treaty establishing the European Economic Community, with the result that they may continue to prosecute claims in a foreign currency against debtors established in the Federal Republic of Germany by means of summary proceedings for recovery”.

Since the Court is not empowered under Article 177 to interpret and, a fortiori, to express an opinion on a provision of national law I take the liberty of redrafting the question referred in the following terms:

Must Article 7 of the EEC Treaty be understood as meaning that a national provision which does not permit creditors claiming against debtors residing in the Member State which introduced the said provision, in cases where the debts are expressed in foreign currency, to use a simplified procedure for obtaining orders to pay is a measure which discriminates on grounds of nationality?

I — Since an appropriate answer to that question presupposes a good knowledge of the “Mahnverfahren”, I will begin with a description of it.

Proceedings for obtaining an order to pay, the rules of which are contained in Articles 668 to 703 (d) of the Code of Civil Procedure, are special summary proceedings by way of an exception to the normal legal proceedings (Klageverfahren), the rules whereof are found in Article 253 et seq. of the same Code.

(a) Limited since their introduction in 1877 to certain claims relating to property rights they are used much more than ordinary proceedings for the recovery of cash debts, especially where the debtor does not seriously dispute the debt. Summary proceedings for obtaining an order to pay are particularly well-adapted to simple claims (Ansprüche) to which there is no defence, a great many of which arise out of current legal relations and for this reason may be classified under a limited number of types of contract. I have also learnt that the most frequent users of such proceedings are undertakings which deal direct with the ultimate consumers, such as mail order firms. The difference between ordinary legal proceedings and summary proceedings for obtaining an order to pay is that the latter are simple and offer creditors a considerable saving of time. All that the latter have to do is to lodge a summary claim (Mahnantrag) at the court having jurisdiction, drawn up on the printed form which, in addition to giving the names of the parties, gives concise particulars of the claim. If the claim fulfils the formal legal requirements the court makes a summary order to pay (Mahnbefehl) without going into the substance of the case and serves it on the debtor of its own motion. If the debtor does not pay and does not lodge an objection (Widerspruch) against the order within the period of two months from the service thereof, the creditor may ask for an order which entitles him to proceed to enforcement against the defendant. That order is also made without the court having jurisdiction going into the substance of the case. It has the same effect as a judgment in default and may therefore be provisionally enforced. On the other hand, if the debtor disputes the claim within the prescribed period the summary proceedings for obtaining an order to pay are converted into an ordinary action. The particular consequence of this is that the creditor must, within a period of two weeks, deliver submissions in support of his claim so that the court may consider its substance. Therefore, if the claim is disputed, summary proceedings for obtaining an order to pay constitute a procedural detour which slows down considerably the normal proceedings, which are in any event longer, if only because it is the prevailing practice to include a hearing. Summary proceedings for obtaining an order to pay save costs as well as time. The legal costs of bringing such proceedings are half those of ordinary legal proceedings. Furthermore, the creditor does not have to be represented by Counsel, whereas this is obligatory when ordinary proceedings are brought if the value of the subject-matter of the action is more than DM 3500.

(b) This description applies to the rules in their present form which, as far as they affect this case, have been amended twice since they originally entered into force. Until 29 July 1972 summary proceedings for obtaining an order to pay could be commenced only against debtors established in Germany, but it was nevertheless possible to claim repayment of debts expressed in German or foreign currency without distinction. This aspect of the matter was thereafter regulated by the Law of 29 July 1972 implementing the Convention of 27 September 1968 (the Brussels Convention). As from that date the summary proceedings under consideration might also be initiated against debtors established in the Contracting States parties to the Convention other than Germany in the case of claims expressed in either foreign or German currency. But since 1 July 1977, the date when the Law of 3 December 1976 simplifying and accelerating legal proceedings (the so-called “simplifying law”) entered into force, it is no longer possible by means of summary proceedings to claim repayment of debts expressed in foreign currency against debtors established in the Federal Republic, whereas this may be done if the debtor is established in any of the other Contracting States parties to the Brussels Convention, namely the five other original Member States of the Community.

(c) What were the reasons for the 1976 reform? The German Government has explained to the Court that it was introduced “with the aim of impoving the protection of the party being sued and rationalizing the work carried out by the courts. In particular, the Law made feasible the mechanical processing of cases, with a view to permitting the use of computerization”. But the inquiry prior to the legislative work showed that to include debts expressed in foreign currency in a system for the data-processing of summary proceedings for obtaining an order to pay would entail a considerable enlargement of the programme for verification (software) of the claim, which is already highly complicated. This factor, which must be set against the very small number of claims of this type which are in fact made, led to the text which is criticized of Article 688 (1) of the Code of Civil Procedure (ZPO), which was drafted as follows : “Where the claim is for payment of a specific sum expressed in national currency, on application by the claimant a summary order to pay (Mahnbescheid) shall be issued”. In the view of the German Government there are fundamental differences between that situation and the situation where the debtor is resident in a Contracting State party to the Brussels Convention, which differences account for the retention in the latter case, as provided for in Article 688 (3), of the admissibility of a claim in respect of debts in foreign currency, which are therefore still dealt with manually. In such cases part only of the proceedings in fact take place in Germany since the service and enforcement of the order come within the jurisdiction of the court where the debtor resides. Since German currency is foreign currency at the place of enforcement the exclusion of claims in foreign currency would, according to the German Government, have meant that the creditor who had embarked upon those proceedings and the creditor of a debtor residing in the Federal Republic would receive unequal treatment.

(d) The German Government also added that the restriction of the field of application of Article 688 (1) was not the only modification brought about by the technical requirements of computerization. The most important appear to me to be the exclusive jurisdiction of the claimant's court — which makes it possible for claims from large undertakings to be centralized —, the right conferred upon the Länder to centralize claims in a single local court, and especially the abandonment of any examination of the substance of the claim, which I have reason to believe was the object of the strongest criticisms of the 1976 reform. Furthermore, the restriction of the proceedings to claims expressed in national currency excludes not only claims expressed in foreign currency but also those in respect of fungibles and securities which could be recovered in this way before 1 July 1977. It is interesting to note in this connexion that the laws of the other Member States — apart from the laws of the Netherlands, Ireland and Luxembourg about which I have no information — do not draw any distinction between debts expressed in national currency and those expressed in foreign currency, for the recovery of which summary proceedings are moreover also available.

(e) The isolated position of the German rules is all the more remarkable because, as we shall see shortly, the reasons put forward to justify the different treatment of claims according to the currency in which they are expressed are not, when all the factors have been considered, relevant. If a list is drawn up of the various cases in which the restrictive provision of Article 688 (1) applies, it is immediately obvious that two of them are mainly theoretical and that only the third, of which the instant case is an exact example, can have any practical effect. The answer to the German Government, which has emphasized several times that the inadmissibility of the proceedings affected claimants residing in the Federal Republic as well as those resident abroad, is quite simply that, where you have a purely national legal relationship, the choice of a foreign currency is very rare and is, in this case, subject in addition to the preliminary authorization of the competent authorities (Article 3 of the Währungsgesetz [Law on currency] of 20 June 1948 and Article 49 of the Aussenwirtschaftsgesetz — Anpassungsgesetz [Law adjusting the Law on foreign trade]). The second case in which it may apply, namely where the creditor resides in a Member State of the Community other than Germany and the debtor resides in a State which is not a party to the Brussels Convention, is also a purely academic situation; it is difficult to see how a German court could have jurisdiction to decide an action which had arisen in those circumstances. The inadmissibility of claims expressed in foreign currency only therefore applies in practice to cases where the creditor resides abroad and the debtor in Germany. But as the German Government has in fact stated, such cases are so few that they cannot be accounted for statistically. Furthermore, in accordance with Article 689 (2) of the Code of Civil Procedure (ZPO) “if the claimant is not resident or established (keinen allgemeinen Gerichtsstand hat) within the country, the Amtsgericht Berlin-Schöneberg has exclusive jurisdiction”. In these circumstances, the Federal Government's argument that a reversion to manual treatment of these claims would necessitate the employment of specialist staff in many courts, which would destroy the cost advantage expected of computerization, cannot be upheld. There is not therefore any objective reason for excluding from the summary-procedure for obtaining an order to pay claims expressed in foreign currency where the debtor is resident in the Federal Republic of Germany. But one must take care not to draw the conclusion from this that the law which is criticized is for that reason incompatible with Article 7 of the Treaty.

II — Before considering this point I must mention that, although that provision is the only one referred to in the question asked by the Amtsgericht, the plaintiff in the main action has also relied during the present proceedings on two other rules of Community law.

Thus it has mentioned infringement of Article 106 (1) of the Treaty, which lays down the principle of the freedom of intra-Community payments. However, although in its written observations it pointed out “that it was unnecessary to consider whether (that article) was a sufficient basis either alone or in conjuction with Article 7, for an application against the measure adopted, ” at the oral hearing its representative expressed his conviction that “Article 106 gave expression to the general prohibition of discrimination contained in Article 7, in the same way as the provisions relating to freedom of establishment or freedom to provide services”. For that reason I shall not consider the argument concerning Article 106 (1) independently of the alleged infringement of Article 7.

I shall only therefore consider separately the second rule of Community law of which the plaintiff alleges that there has been a breach, in addition to the infringement of Article 7, and which it called the general principle of “Rückschrittsverbot” (the prohibition on the imposition of restrictions on a liberal system which is already in existence) in its written observations and, in accordance with terminology with which the Court is more familiar, the “standstill” principle during the hearing.

I will begin by considering Article 7.

(a) The first paragraph of this Article, as the Court is aware, reads as follows: “Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.” This wording clearly gives rise to two preliminary questions relating to the rules in question. In the first place it cannot, I believe, be denied that a claim arising out of the sale of goods from one Member State to another falls within the sphere of competence of the Community. On the other hand, there is no doubt whatever that as far as concerns the availability of a simplified summary procedure for obtaining an order to pay a debt incurred through the purchase of goods, the specific applicable provisions relating to the free movement of goods and those of Article 106 (1) on the liberalization of payments, far from providing for derogations from the general rule contained in Article 7, on the contrary merely render it more explicit in connexion with the specific matters which they govern.

(b) There remains the crucial question of discrimination on grounds of nationality. A law like the German law is clearly not a series of overtly or, to use another word, directly discriminatory rules since German creditors are not entitled any more than foreigners to prosecute claims expressed in foreign currency against debtors resident in Germany by means of the procedure which I have examined. If there is discrimination it can only be indirect discrimination. In order to find out what that means it is only necessary to refer to paragraph 11 of the Court's judgment of 12 February 1974 in Case 152/73, Sotgiu v Deutsche Bundespost [1974] ECR at p. 164, to which the Court drew attention in paragraph 78 of its judgment of 16 February 1978 in Case 61/77, Commission v Ireland [1978] ECR at p. 450. The Court stated that “the rules regarding equality of treatment, both in the Treaty” (therefore in the very first place that laid down by Article 7) “and in Article 7 of Regulation No 1612/68, forbid 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”. As the plaintiff in the main action has stressed, “the practical effect is therefore more important than the criterion laid down” and “the equality of opportunity of Community nationals is affected whenever a set of rules leads to nationals of one Member State being placed in a better position than nationals of the other Member States of the Community”. In this case, as we have seen, the distinguishing criterion which must be considered to ascertain whether it does in fact have the same effect as overt discrimination is twofold. In Article 688 (1) it is the nature of the currency, whether it is national or foreign, which confers or excludes the right to ask for an order to pay. Under the third paragraph of the same article it is the debtor's residence which, as between claims expressed in foreign currency, has the same effect since, by way of exception, the courts have to deal with claims expressed in foreign currency if the debtor is resident in a Contracting State party to the Brussels Convention.

(c) In the Commission's view the possibility cannot be ruled out, as a matter of principle, that currency may be a discriminatory criterion, but such does not appear to be the case here. In its opinion, the question whether national or foreign currency is involved is a neutral criterion which affects Germans as well as foreigners. Thus the subsidiary of a German company which is established in France and carries on business there can no more take advantage of the summary proceedings for obtaining an order to pay in order to recover a debt expressed in French francs than an ordinary French plaintiff.. As a matter of fact I do not share this view and the example given does not seem to be particularly well chosen: the French subsidiary of a German company is a company incorporated under French law; it is only to be expected that the German legislature should treat it on the same footing as any other company of this kind. I would rather adopt the assessment of the plaintiff in the main action, who considers that to maintain that the currency criterion is objective, in the sense that it applies in the same way to all Community nationals, is to take a very theoretical view of things. Such a point of view does not take account of the benefits which may be derived by an undertaking, particularly if it is small, from invoicing goods intended for export in its national currency: simplified processing of invoices; elimination of the exchange risk, which is passed on to the customer; application of a uniform price to transactions on the home market and to exports. Consequently, German undertakings more than others make out their invoices in German currency and are therefore much less inclined than foreign undertakings to sue in their national courts for recovery of debts in foreign currency. The rule laid down by the Law of 1976 therefore relates, in the main, to foreign undertakings. Of such undertakings, those of the other Member States of the Community seem to me to be particularly affected because of the existing patterns of trade and also because of the difficulty of reconciling the law in question, if not with the rules of Community law — this has not yet been established at this stage of the assessment — at least with the spirit which should be the dominant factor in the building of a Community having as one of its objectives the creation of an extensive market operating as a domestic market.

(d) On the other hand, does not the law which is criticized draw a discriminatory distinction between debts expressed in foreign currency by allowing a claim for a summary order to pay only if the debtor resides in a Contracting State party to the Convention of 27 September 1968? It is the view of the Federal Government that Article 688 (3) must, as we have seen, be carefully distinguished from Article 688 (1). Article 688 (3), a provision which simply implements the Convention, is designed to ensure equal treatment for nationals of all the Member States. The admissibility of claims for repayment of debts in foreign currency is absolutely essential in order that decisions giving leave to enforce the summary order to pay (“die Vollstrek-kungsbescheide”) are recognized and enforced in the other Contracting States parties to the Convention in which by definition German currency is a foreign currency. To put it in another way, were it not for the third paragraph of Article 688 creditors residing in Germany would, because of the currency selected, run the risk of being discriminated against abroad as compared with creditors established in the State where the order is to be enforced. In fact, since creditors residing in the Federal Republic of Germany are mostly German, this preferential provision will operate in the main to their advantage, whereas, and this is emphasized by the instant case, there is no comparable provision for creditors established in the other Contracting States parties to the Brussels Convention. Looked at from these points of view the law in question is therefore indeed discriminatory. I do not, however, think that this finding is sufficient to prove that discrimination forbidden by Article 7 of the Treaty in fact exists.

(e) With regard to indirect and covert discrimination it seems to me in fact that account must also be taken of the practical effects of the rules which are criticized. As the Court file containing the written procedure and the submissions made during the oral procedure indicates, and subject to the court making the reference having correctly stated the relevant German law, these effects appear to be negligible. They would be reduced almost to nothing if, as the German Government surprisingly suggested, the foreign creditor was entitled to convert his claim into German currency when he commenced proceedings. But such a conversion is contrary to Article 244 of the Civil Code (BGB), which provides for this only for the benefit of the debtor. But it is the convergence of the following factors which forms the basis of my opinion. It must in the first place be borne in mind that the disputed rules do not in any way oblige foreign creditors to express amounts owed in their own currency. They are not in law bound to do so; if they do the reason is that it is to their advantage. In the second place, it is common ground that summary proceedings for obtaining an order to pay were used only very rarely before 1977 for the recovery of debts in foreign currency. Thus the German Government gave as an example in the preamble to the Law of 1976 the Amtsgericht Stuttgart which, out of 3553 summary proceedings for obtaining an order to pay, did not deal with one in which the debt was expressed in foreign currency. The simplified and accelerated version of the ordinary legal proceedings, which has also been partly amended by the simplifying Law of 1976, the rules whereof are laid down in Articles 276, 307 (2) and 331 (3) of the Code of Civil Procedure (ZPO), also seems to be a way of mitigating the disadvantages, if any, of the disputed unavailability of the summary proceedings for obtaining an order to pay. Finally, because claims expressed in foreign currency are more rarely for a small amount than those expressed in national currency and because it is the debtor in such cases who bears the exchange risk, there is in practice every likelihood of the claim being defended, with all the attendant disadvantages. This is why in my opinion a provision like Article 688 of the Code of Civil Procedure, in the version in which it entered into force on 1 July 1977, does not contravene the provisions of Article 7 of the Treaty.

(f) In those circumstances the view can no longer be taken that Article 106 (1) of the Treaty has been infringed. That article, “the aim of [which] is to ensure that the necessary monetary transfers may be made ... for the free movement of goods” (paragraph 24 of the judgment of 23 November 1978 in Case 7/78, Regina v Thompson [1978] ECR at p. 2274), and which imposes on Member States the obligation to allow payment for goods sold to be made in the currency of the Member State where the exporter resides, is in fact, as the plaintiff in the main action has itself indicated, the expression in a specific field of the general principle prohibiting discrimination contained in Article 7.

III — The plaintiff in the main action has not during the oral procedure expatiated upon the third principle of Community law, breach of which it has pleaded during the present proceedings and which I will merely call for the sake of simplicity the “standstill” principle.

Whatever the reasons for this brevity may be, it must above all be noted that an argument based on the alleged breach of a possible “standstill” principle is no answer to the question from the court making the reference which mentions Article 7 as the sole Community law provision alleged to be infringed by the amendment to the summary proceedings for obtaining an order to pay.

It seems to me that the Court has already answered the question whether, in the context of the procedure for obtaining a preliminary ruling under Article 177, it may consider arguments based on an alleged breach of rules of Community law where the court making the reference has not requested the Court to interpret or determine the validity of those rules. In paragraph 31 of its judgment of 18 June 1975 in Case 94/74, Industria Gomma Articoli Vari, IGAV v Ente Nazionale per la Cellulosa e per la Carta ENCC [1975] ECR at p. 712, the Court held that “despite the reference made by the national court (the Pretore of Abbiategrasso) in its order referring the matter to the principle of the free movement of goods, to the objective of merger of the different national markets into a single market and to the elimination of any form of discrimination by the Treaty, there are no questions before the Court of sufficiently precise a nature to enable it to consider the objections raised by the applicant in the main action. Accordingly these arguments must be disregarded in the framework of the present proceedings.”

To transpose the solution chosen in the IGA V judgment to this case seems to me to be all the more justified as the order making the reference of the Amtsgericht Berlin-Schöneberg does not even contain any reference of the kind made by the Italian court.

I therefore believe that it would be trespassing on the Court's time to consider an argument relating to a principle which, even if it were assumed to be an established principle and to have been breached, cannot be connected in any way with the prohibition on discrimination laid down by Article 7.

In short, I submit that the Court should answer the question referred to it by the Amtsgericht Berlin-Schöneberg as follows:

Article 7 of the EEC Treaty must be understood as meaning that a national provision which denies access to a simplified procedure for obtaining a summary order to pay to creditors whose claims are expressed in foreign currency and who wish to sue debtors residing in the Member State which enacted the provision in question is not a measure involving covert discrimination on grounds of nationality if they are allowed access to normal legal proceedings, in particular to the accelerated version thereof.

( 1 ) Translated from the French.