2.

The provisions of Article 18 of the Brussels Convention are as follows: “Apart from jurisdiction derived from other provisions of this Convention, a court of a Contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction by virtue of Article 16.” In setting out the reasons on which the judgment making the reference was based the Cour d'Appel, Versailles, emphasized the difference existing between the French version of the above-mentioned provision and the Dutch, German and Italian versions. In fact the French version of the second sentence of Article 18 provides: “Cette règle n'est pas applicable si la comparution a pour objet de contester la compétence ...”, whilst according to the versions drawn up in the other three languages the provision contained in the first sentence does not apply “where appearance was entered solely to contest the jurisdiction ...”. That difference in the four language versions of Article 18 has already prompted the Belgian Hof van Cassatie, to request the Court, by an order of 9 June 1980, to reply to the following question: “Is the rule on jurisdiction contained in Article 18 applicable if the defendant has not only contested jurisdiction but has in addition made submissions on the action itself?” As I recalled at the beginning that question was a subject of the reference for a preliminary ruling in Case 150/80, Elefanten-Schuh, and led to the judgment of 24 June 1981 in which it was held, inter alia, that the said article “must be interpreted as meaning that the rule on jurisdiction which that provision lays down does not apply where the defendant not only contests the court's jurisdiction but also makes submissions on the substance of the action, provided that, if the challenge to jurisdiction is not preliminary to any defence as to the substance, it does not occur after the making of the submissions which under national procedural law are considered to be the first defence addressed to the court seised”. In this connection the statement of the Court of Justice at paragraph 14 of the decision should be recalled: it was that the interpretation permitting a defendant to contest the jurisdiction of the court as well as the substance of the claim “is more in keeping with the objectives and spirit of the Convention. In fact under the law of civil procedure of certain Contracting States a defendant who raises the issue of jurisdiction and no other might be barred from making his submissions as to the substance if the court rejects his plea that it has no jurisdiction. An interpretation of Article 18 which enabled such a result to be arrived at would be contrary to the right of the defendant to defend himself in the original proceedings, which is one of the aims of the Convention”. The Court then added a single restrictive condition stating: “However, the challenge to jurisdiction may have the result attributed to it by Article 18 only if the plaintiff and the court seised of the matter are able to ascertain from the time of the defendant's first defence that it is intended to contest the jurisdiction of the court”. The views upheld in that judgment should, in my opinion, be fully confirmed. Article 18, as the Court is aware, is intended to govern “jurisdiction implied from submission” (cf. the Report on the Convention, known as the Jenard Report, at page 38) and in that connection the entry of an appearance by the defendant is deemed to imply submission to the court seised of the proceedings which, it is supposed, the plaintiff selected without any regard for the cases provided for by the other provisions of the Convention. In order to prevent in particular cases entry of an appearance being considered as implying an intention to submit to the jurisdiction it is sufficient that a clear declaration that this is not so should be made: that is to say, an objection of lack of jurisdiction. Nevertheless, once the objection of lack of jurisdiction has been submitted there does not appear to be any reason why the defendant should be precluded from dealing in the alternative with the substance of the case lest the court should hold that it has jurisdiction. Clearly, the essential aim of entering an appearance remains that of raising an objection to the jurisdiction (the French version of Article 18 was thus well drafted, unlike the other versions); but what purpose is served by prohibiting the defendant from submitting arguments, as a precaution, to apply only if his objection is overruled?