6.

Whether it be by means of the Brussels Convention or by means of the bilateral convention, the enforcement of the judgment given in the original country would meet with the same kind of obstacles. An enforcement by means of the Brussels Convention comes up against the Court's judgment of 14 October 1976. The proceedings initiated in the first country concerned the recovery of charges payable by a person governed by private law to a national or international body governed by public law for the use of equipment and services provided by such body, their use being obligatory and exclusive (cf. paragraph 4 of the part of the Courts judgment headed ‘Law’). In that case the rate of charges, the methods of calculation and the procedures for collection were fixed unilaterally in relation to the users, the public body having unilaterally fixed the place of performance of the obligation at its registered office and selected the national courts with jurisdiction to adjudicate upon the performance of the obligation. In brief the proceedings were between a public authority and a person governed by private law in which the public authority was acting in the exercise of its powers (paragraph 5). Since it relates to an application for enforcement of an enforceable judgment given in a civil and commercial matter within the meaning of the Brussels Convention, the procedure is very simple: the party against whom the enforcement is sought cannot at this stage of the proceedings make any submissions on the application; under no circumstances may the judgment be reviewed as to its substance (Article 34). It is true the application may be refused but only for one of the reasons specified in Articles 27 and 28, that is to say in particular if the enforcement is contrary to public policy in the State in which recognition is sought (Article 27 (1)). But the last paragraph of Article 28 provides that ‘the jurisdiction of the court of the State in which the judgment was given may not be reviewed; the test of public policy referred to in Article 27 (1) may not be applied to the rules relating to jurisdiction’ (that is to say those referred to in Title II). The reason underlying the Court's judgment of 14 October 1976 therefore appears to me to be the following: to include a claim for recovery such as that which was the subject of the action before the national court in civil and commercial matters would have had the result that the court of the State in which recognition was sought and which had asked for a preliminary ruling would have been bound by the classification given of its jurisdiction by the court of the State in which judgment was given and this jurisdiction, not being a matter of public policy (third paragraph of Article 28) could not have been reviewed by the court of the State in which enforcement was sought. The Court of Justice itself considered that the main action raised in fact a question of public policy and for this reason felt it necessary to reject the classification of the action as a ‘civil or commercial’ matter within the meaning of the Brussels Convention. Recourse to the bilateral convention appears at first sight simpler, but this is not so. It is true that, as distinct from the Brussels Convention, the bilateral convention covers the enforcement of arbitration awards but subject to their being in accord with public policy (Article 13). In the same way the definition of what must be understood by ‘judgment’ (Article 1 (3), Article 2 (2)) or by ‘matter’ (Articles 3 and 4) within the meaning of the bilateral convention appears wider than the expressions in Articles 25 and 1 of the Brussels Convention. But this liberality is tempered by a serious restriction. According to Article 10, the judgment of which enforcement is requested may not be reviewed in any way save as specified in Article 2. Under that article, even if there can be no review of the substance of the judgment (last sentence of Article 10 (1)), the court before which enforcement is sought — contrary to the position in relation to recognition (Article 5 (1)) — is not bound by the findings of fact on which the court in which judgment was given based its jurisdiction and recognition may be refused if, but only if, it is contrary to the public policy of the State where it is sought (first subparagraph of Article 2 (1)) and if the courts of the State where the judgment was given are not recognized as having jurisdiction under the convention (third subparagraph of Article 2 (1)): in this respect reference should be made in particular to the provisions of the second subparagraph of Article 3 (1) and to Article 3 (2). With regard to enforcement the court applied to may and indeed must review the jurisdiction of the court where judgment was given and, as distinct from the Brussels Convention, the rules for jurisdiction are put on the same level as public policy and the court must review them of its own motion. Consequently the practical result appears to me to be the same whether the application for enforcement is based on the Brussels Convention or on the bilateral convention: through the expedient of the objection based on public policy and the review, of the court's own motion, of the jurisdiction of the court before which judgment was given, the court in which the enforcement is sought under the bilateral convention must review the classification of the subject-matter of the action brought before the original court and, having regard to what was laid down in the judgment of the Court of Justice of 14 October 1976, I cannot see how the German courts could still include in the field of application of the bilateral convention actions for the recovery of the charges of Eurocontrol without involving German public policy or refusing to review the jurisdiction of the courts where judgment was given, which comes to the same thing. It seems to me that this is what the Bundesverfassungsgericht decided in an order of 2 December 1974. Of course, as it is customary to state, it is for the national court to decide this issue.