Opinion of Mr Advocate General Tesauro delivered on 16 December 1993. - Mund & Fester v Hatrex Internationaal Transport. - Reference for a preliminary ruling: Hanseatisches Oberlandesgericht Hamburg - Germany. - Seizure order - Sufficient grounds: enforcement of a judgment in another Contracting State party to the Brussels Convention - Prohibition of discrimination. - Case C-398/92.



European Court reports 1994 Page I-00467

Swedish special edition Page I-00037

Finnish special edition Page I-00045



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By order of 16 November 1992, the Hanseatisches Oberlandesgericht (Higher Regional Court), Hamburg, asked the Court whether a provision such as Paragraph 917(2) of the Zivilprozessordnung (German Code of Civil Procedure, hereinafter referred to as "the ZPO"), pursuant to which the fact that the judgment to be delivered in due course will have to be enforced abroad is a sufficient ground for authorizing a seizure order, even if enforcement is to take place in a country which is a party to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968, is contrary to the prohibition of discrimination laid down by Article 7 of the EEC Treaty (which has become Article 6 under the new numbering resulting from the Maastricht Treaty, which entered into force on 1 November 1993).

2. The facts of the present case may be summarized as follows.

Hatrex International Transport ("Hatrex"), an international carrier whose registered office is in the Netherlands, had carried goods on behalf of a German principal. Since the goods were damaged whilst in transit, the German company Mund & Fester, which was subrogated to the principal' s rights by virtue of an assignment of a debt, claimed damages. In order to ensure recovery of the debt in question, Mund & Fester applied to the Landgericht (Regional Court), Hamburg, pursuant to Paragraph 917 of the ZPO, for a seizure order against the lorry - which was still in Germany - used by Hatrex for the transport operation. According to the first paragraph of the German provision in question, a seizure order may be made where there is reason to believe that, without such a measure, the enforcement of the judgment would be made impossible or considerably more difficult; according to the second subparagraph, the fact that the judgment will have to be enforced abroad is in itself a sufficient reason for granting such a measure.

3. Mund & Fester appealed to the Hanseatisches Oberlandesgericht against the dismissal of its application, one of the reasons given for which was that Paragraph 917(2) was no longer applicable to the enforcement of decisions in States which are parties to the Brussels Convention. The Hanseatisches Oberlandesgericht considered itself under an obligation to stay the proceedings and to refer to the Court of Justice a question on the interpretation of the first paragraph of Article 7 of the EEC Treaty.

4. The order for reference must be construed as meaning that the national court wishes to know whether the provisions of the Brussels Convention, alone or in conjunction with Article 7 or other provisions of the EEC Treaty, prevent the application of a national provision which automatically allows a seizure order to be made, at the request of the interested party, on the sole ground that the judgment will have to be enforced abroad, where the country in question is a Member State, whilst if the judgment is to be enforced within national territory the measure in question can be granted only if there is a risk that enforcement will be made "impossible or considerably more difficult".

5. Paragraph 917(2) of the ZPO is not in fact incompatible with any specific provision of the Brussels Convention. Moreover, it would be difficult to envisage any such incompatibility since the provision at issue does not come within the objective scope of the Convention, whose purpose is "not to unify procedural rules but to determine which court has jurisdiction in disputes relating to civil and commercial matters in intra-Community relations and to facilitate the enforcement of judgments". (1) In the present case, on the contrary, the court was called on to adopt protective measures, an area not covered by the Convention - Article 24 of it refers, in that connection, to the national legislation of the countries concerned, and likewise as regards the determination of jurisdiction.

6. It may be true that the Court has held that limits apply to the application of national procedural rules since the latter must not impair the effectiveness of the Convention, in particular the rules on jurisdiction laid down in it; (2) however, it can hardly be contended that Paragraph 917(2) of the ZPO entails that result.

In the first place, it cannot be asserted that that provision is contrary to the Convention' s objective, which is "to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments ...", (3) since enforcement would in any event be guaranteed by the seizure order and it would therefore be inappropriate to use the machinery provided for by the Convention. Indeed, the latter, as rightly pointed out by the Commission in its observations, is not intended to raise to the maximum the number of occasions on which judgments are enforced in Member States other than those in which they were delivered but merely to facilitate their free movement to the greatest possible extent.

Secondly, it likewise cannot be affirmed that Paragraph 917(2) of the ZPO has an impact on the rules on jurisdiction laid down by the Convention: as far as provisional and protective measures are concerned, the Convention confines itself to allowing application to be made for such measures to the judicial authorities of a Contracting State, even if a court of another Contracting State has jurisdiction as to the substance of the matter (Article 24).

7. It thus being clear that the provision in question is not incompatible with the Convention, it is necessary to consider whether the general principle of non-discrimination embodied in Article 7 of the Treaty prevents its application.

Article 7 provides that "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". It will therefore be necessary to decide first whether the provision at issue concerns a matter governed by Community law and secondly whether there is inherent in it any discrimination based on nationality.

8. As regards the first point, it must be noted that Article 220 of the Treaty, in so far as it is relevant to the present case, includes among the types of further action conducive to the attainment and development of a common market, as provided for in Article 2 of the Treaty, the simplification of formalities governing the reciprocal recognition and enforcement of judgments. The fact that that article entrusts to the Member States, and not to the Community institutions, the task of attaining the objectives which it sets is due to the fact that jurisdiction in civil and commercial matters remains, in any event, a matter within the sovereignty of the Member States; however, that does not preclude the conclusion that the rules with which it is concerned fall within the scope of application of the Treaty, for the purposes of Article 2. The free movement of judgments is of fundamental importance to the avoidance of the difficulties which can arise for the functioning of the common market when it proves impossible to secure the acceptance of, and easily enforce, even by judicial means, the individual rights that derive from the multiplicity of legal relationships which come into being in that market. (4)

9. In reply to the objection that Article 220 merely sets out a programme or, to use the Court' s words, "is not intended to lay down a legal rule directly applicable as such, but merely defines a number of matters on which the Member States are to enter into negotiations with each other 'so far as necessary' ", (5) it can be stated without difficulty that, in the sphere relevant to this case, those matters are set out by the 1968 Brussels Convention. It is therefore by virtue of the Convention that the provisions concerning jurisdiction and the simplification of formalities for the recognition and enforcement of judgments now fall within the scope of the Treaty. That said, it is clear that - on the basis of the traditional rules governing the hierarchy of sources of law - neither the provisions of the Convention nor the national provisions to which they refer, in particular as regards seizure orders, can conflict with the rules of the Treaty.

10. I shall therefore move on to consider the second point, namely whether Paragraph 917(2) of the ZPO involves any discrimination on grounds of nationality which cannot be justified by objective reasons of the kind laid down in the case-law of the Court.

11. No manifest discrimination is apparent in the provision at issue. Since a seizure order is automatically granted in all cases in which the judgment to be delivered in due course has to be enforced abroad, such an order may also be made against a German national who has no assets in Germany of sufficient value for the judgment given against him to be enforced.

In that connection it must nevertheless be pointed out that the Court has consistently held that "the rules regarding equality of treatment 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 to the same result"; (6) and in my view, it is difficult to deny that Paragraph 917(2) of the ZPO can be invoked only rarely - and in wholly exceptional cases - against a German undertaking or national and that that provision therefore leads to the same result as discrimination on grounds of nationality.

12. That finding is not, however, sufficient in itself to demonstrate the existence in this case of discrimination prohibited by Article 7 of the Treaty.

It is necessary to consider whether the provision at issue may be justified by objective reasons (7) and therefore whether the differing rules laid down for seizure orders, depending on whether a judgment is to be enforced inside the country in question or abroad, reflects a genuine difference between the factual circumstances of the two cases.

In that regard I think it is appropriate to bear in mind the function of a measure such as a seizure order. A seizure assures the person in whose favour the measure was granted of the possibility of securing the enforcement, in due time, of a judgment to be delivered subsequently, where there are solid grounds for believing that the debtor may attempt to dispose of the assets which might be seized. Whilst, therefore, it is appropriate to adopt a provisional measure of that kind - as is in fact stated in Paragraph 917(1) of the ZPO - where it is reasonable to fear, having regard to the circumstances of the case, that without such a measure enforcement of the judgment delivered in due course would be rendered impossible or considerably more difficult, that greater difficulty cannot be presumed if enforcement is to take place in a Member State of the Community.

Indeed, whilst such a presumption might have been justified before the entry into force of the Brussels Convention, and may without doubt continue to be justified in cases where enforcement is to take place in a non-member country, in view of the delays and problems associated with the need to secure the recognition of a judgment and an order for enforcement in a foreign country, those reasons can no longer be relied on with regard to countries that are signatories to the Convention. The reduction in the number of obstacles to the recognition and enforcement of decisions given in another Contracting State and also the simplification of the procedures for obtaining an order for enforcement ensure, within the scope of the Convention, enforcement of judgments which is not in practice less rapid or less certain than when the judgment is enforced within the country in which it is delivered but within the territorial jurisdiction of another court.

Since, therefore, there is no objective reason justifying the differing rules for which Paragraph 917 of the ZPO provides - at least as it is interpreted in practice - regarding the conditions required for the issue of a seizure order in cases where a judgment is to be enforced in another Member State of the Community, that difference in fact creates discrimination contrary to the first paragraph of Article 7 of the Treaty.

13. In view of the foregoing considerations, I therefore suggest that the Court reply as follows to the question submitted by the Hanseatisches Oberlandesgericht:

By virtue of Articles 7 and 220 of the EEC Treaty, read in conjunction with the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, a national provision which authorizes the seizure of an asset if the judgment to be delivered in due course is to be enforced abroad may not be interpreted to the effect that the fact of enforcement abroad in itself provides sufficient grounds for the court to grant that provisional measure even where the judgment is to be enforced against a national of a Member State and falls within the scope of application of that Convention.

(*) Original language: Italian.

(1) - See the judgment in Case C-365/88 Hagen [1990] ECR 1845 (in particular paragraph 17).

(2) - See Hagen, cited above, in particular paragraph 20; see also the judgments in Case 288/82 Duijnstee [1983] ECR 3663, in particular paragraphs 17 to 19, and in Case 145/86 Hoffmann [1988] ECR 645, in particular paragraphs 29 to 33.

(3) - As stated in the preamble to the Convention, in conformity with the provisions of Article 220 of the EEC Treaty.

(4) - See in that regard the Jenard report on the Brussels Convention (OJ 1979 C 59, p. 1, in particular at p. 13). One might perhaps add that there appear to be no grounds for concluding that an application linked with an action to establish contractual liability in relation to a service provided by an undertaking established in a Member State for a customer in another Member State is not a Community matter, since that application has, in any event, an impact on commercial relations within the Community. That said, the provision in question does not constitute - as is, moreover, rightly pointed out by the Commission - an obstacle to the fundamental freedoms in respect of the movement of goods and the provision of services provided for by Articles 30 and 59 of the Treaty. The link with those freedoms in fact appears to be too indirect and it therefore seems to me to be unsafe to state, for example, with regard to the present case, that, because of the provisions of the German Code of Civil Procedure at issue in this case, a non-German carrier is impeded from providing services in Germany or a German customer finds it more convenient to use a transport undertaking whose headquarters are in Germany.

(5) - Case 137/84 Ministère Public v Mutsch [1985] ECR 2681, in particular paragraph 11.

(6) - Judgment in Case C-175/88 Biehl [1990] ECR I-1779, paragraph 13. That principle dates back to the judgment in Case 152/73 Sotgiu [1984] ECR 153, in particular paragraph 11; see also, among others, the judgment in Case 22/80 Boussac [1980] 3427, in particular paragraph 9, which displays certain similarities with the present case.

(7) - See in that regard, among others, the judgments in Case 167/88 Association des Producteurs de Blé et Autres Céréales [1989] ECR 1653, in particular paragraphs 23 and 24, and Case 22/80, cited above (in particular paragraph 11).