Source: EURLEX
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[**Important legal notice**](http://europa.eu.int/eur-lex/lex/en/editorial/legal_notice.htm)

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# 61991C0172

**Opinion of Mr Advocate General Darmon delivered on 2 December 1992. - Volker Sonntag v Hans Waidmann, Elisabeth Waidmann and Stefan Waidmann. - Reference for a preliminary ruling: Bundesgerichtshof - Germany. - Brussels Convention of 27 September 1968 - Interpretation of Articles 1, 27 and 37. - Case C-172/91.** 
  
*European Court reports 1993 Page I-01963*

  

## Opinion of the Advocate-General

  
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Mr President,

Members of the Court,

1. By means of the questions it has referred to the Court, the Bundesgerichtshof (Federal Court of Justice) asks the Court to rule on the interpretation of the first sentence of Article 1, Article 27(2) and the second paragraph of Article 37 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the 1978 Accession Convention, (1) hereinafter the "Convention".

2. The facts which give rise to the main proceedings are as follows.

3. Thomas Waidmann, a pupil in a school administered by the Land Baden-Wuerttemberg, suffered a fatal fall on 8 June 1984 during a school visit to Italy. The accompanying teacher, Mr Volker Sonntag, a German civil servant, was prosecuted by the Italian authorities before the Bolzano criminal court, for causing death by negligence.

4. On 22 September 1986 the victim' s parents and brother joined the criminal proceedings as civil parties by a court document served on Mr Sonntag 16 February 1987, in order to obtain, before the Bolzano court, compensation for both pain and suffering and material damage.

5. On 25 January 1988, at the criminal trial, when Mr Sonntag was legally represented, the civil parties lodged claims in order to obtain a provisionally enforceable payment on account of LIT 20 million together with costs.

6. According to a judgment given on the same day, Mr Sonntag was found guilty of causing death by negligence and ordered to make the provisionally enforceable payment claimed.

7. The judgment was served on Mr Sonntag and, in the absence of an appeal, became final.

8. On 29 September 1989, upon application by the parties seeking enforcement, the Landgericht (Regional Court) Ellwangen made an order for the enforcement of the civil provisions of that judgment.

9. Mr Sonntag appealed against the enforcement order under Article 36 of the Convention. In those proceedings he served notice of the dispute on the Land Baden-Wuerttemberg, contending that it must relieve him of his obligation to pay damages, since, in his view, under the law governing the civil service that obligation fell on the Land employing him.

10. The Oberlandesgericht (Higher Regional Court) dismissed the appeal, taking the view that the judgment of the Bolzano court concerned a civil matter within the meaning of the first sentence of Article 1 of the Convention.

11. Mr Sonntag and the Land Baden-Wuerttemberg appealed to the Bundesgerichtshof on a point of law on the basis of the second paragraph of Article 37 of the Convention; that court has submitted four questions for a preliminary ruling, which are set out in the Report for the Hearing (2) and which essentially ask the Court to state:

° whether the right of appeal provided for in the second paragraph of Article 37 of the Convention may be exercised by an interested third party where the domestic law of the State in which enforcement is sought allows such a party to contest the judgment in question;

° whether the expression "civil matters" in the first sentence of Article 1 of the Convention includes an action for damages against a public official who, in breach of the duties with which he was entrusted, has caused injury to another person, and whether this is so even where cover is provided under a social insurance scheme governed by public law;

° whether a procedural document which informs the defendant of the existence of a claim for damages but without specifying the amount claimed is to be regarded as a "document which instituted the proceedings" within the meaning of Article 27(2) of the Convention;

° whether a defendant against whom a civil action is brought and joined to criminal proceedings ° a situation provided for in Article 5(4) of the Convention ° must be regarded as having duly appeared within the meaning of Article 27(2) where, at the trial on the substance of the case, and through his counsel, he answered to the criminal charges but did not express a view on the civil claim, on which oral argument was submitted in the presence of his counsel.

12. It is necessary as a matter of priority to determine the nature of the action brought by the victim' s family before the criminal court against an agent of the State. Whether or not the Convention may apply to the facts in issue depends on the answer to that question. I shall therefore begin with the second question.

13. By virtue of Article 1, the Convention is to apply in civil matters "whatever the nature of the court or tribunal". It follows that the nature of the court or tribunal cannot serve as a criterion and that the scope of the Convention includes the civil provisions of a judgment delivered by a criminal court.

14. Even though it is joined to criminal proceedings, a civil action for compensation for damage caused by a criminal offence loses none of its civil character. Consequently, a judgment given by a criminal court can be recognized and enforced in the territory of the other Contracting States as regards its civil provisions.

15. The report by Mr Jenard (3) confirms that the authors of the Convention expressly intended to bring this type of proceeding within its scope.

"The Convention covers civil proceedings brought before criminal courts, both as regards decisions relating to jurisdiction, and also as regards the recognition and enforcement of judgments given by criminal courts in such proceedings." (4)

16. That is also apparent from Article 5(4) of the Convention, which provides that:

"A person domiciled in a Contracting State may, in another Contracting State, be sued: ... as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings."

17. But are the rules on jurisdiction the same where the person responsible for the damage is, like Mr Sonntag, the "holder of a public office"? Do the proceedings still relate to "civil matters"? Or do they concern "administrative matters", which are precluded by Article 1 of the Convention?

18. That article sets out a positive and negative definition of the substantive scope of the Convention:

"This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters ...".

19. However, Article 1 does not define what is meant by "civil matters". The Brussels Convention is not alone in that respect: it is an approach shared by many multilateral and bilateral treaties.

20. Whilst it is rare in a bilateral context to draw up an exhaustive list of matters coming under civil or commercial law, such an approach is even less conceivable in the wider context formed by the corpus of the signatory States, owing to the diversity of their legal systems.

21. The special nature of the Convention, however, is the result of its link with the EEC Treaty, which must also make it possible to establish "closer relations between the States belonging to [the Community]". (5)

22. In order to achieve a uniform application of the rules on jurisdiction in the Contracting States and, in doing so, to maintain cohesion in the interpretation of the law, it is therefore necessary to develop an independent definition of the matters falling within the sphere of private law. In that respect, the case-law of the Court has certainly been extremely innovative.

23. It was in that sense that the Court stated in its judgment in LTU v Eurocontrol (6) that:

"The concept in question must therefore be regarded as independent and must be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems". (7)

In the same decision the Court went on to state that:

"If the interpretation of the concept is approached in this way ..., certain types of judicial decision must be regarded as excluded from the area of application of the convention, either by reason of the legal relationships between the parties to the action or of the subject-matter of the action". (8)

Having laid down this principle of interpretation, the Court went on to apply it in these terms:

"Although certain judgments given in actions between a public authority and a person governed by private law may fall within the area of application of the Convention, this is not so where the public authority acts in the exercise of its powers." (9)

24. This approach to the interpretation of the concept of civil matters within the meaning of the Convention was restated and explained in the Netherlands v Rueffer judgment, (10) the facts of which merit a brief description.

25. The Netherlands State had brought proceedings against Mr Rueffer, a German waterman, to recover the costs incurred by that State in removing a wreck owned by him. The Hoge Raad der Nederlanden had referred a question to the Court for a preliminary ruling on the nature of the proceedings.

26. In order to determine whether the State had acted within the framework of its public powers, the Court analysed not only the objective of the action and the nature of the links between the parties (11) but also the general principles stemming from the corpus of the national legal systems of the Contracting States. (12)

27. Therefore, unlike the German Government, I do not believe that it is sufficient to consider the classification of the dispute only from the viewpoint of domestic law. On the contrary, it is essential to derive from the legal systems of all the signatory States a general principle for determining whether such proceedings constitute a "civil matter".

28. It should be observed at once that the law of the common law countries rarely allows the victim to take part in proceedings before the criminal courts. In those courts the victim does not take part in the proceedings as the "civil party" even when a compensation order is sought. In order to obtain compensation for the damage suffered he must bring proceedings before the civil courts and the author of the damage will be judged in accordance with the rules of civil law. The concept of administrative law does not, moreover, apply in those countries. (13)

29. With regard to the Continental legal systems, the fact that criminal proceedings are brought against the holder of a public office may, it is true, affect the conditions for bringing a civil action, and even call in question the expedience of bringing such an action against the official, but in general has no effect on the characterization of the proceedings on the substance of the case.

30. Accordingly, in Denmark a civil claim in criminal proceedings can be pursued only against the person who actually caused the injury. (14) The claim for damages will be pursued against the public employer in the civil courts and the proceedings retain their civil character. (15)

31. In Spain a person who has committed a criminal offence may be sued in the civil or criminal courts. (16) Where the person concerned is an official the same rules apply, but the vicarious liability of the State may be invoked before the same courts. (17)

32. In Belgium a civil claim against an official and against the State is governed exclusively by civil law and is heard by the ordinary courts.

33. The same applies in Italy, where the liability of the State may be incurred if the official has committed the offence in the performance of his duties. The action brought by the victim retains its the civil-law character whether the claim for damages is made against the official or the State. (18)

34. In Portugal the State is jointly and severally liable, and although acts to which public law applies come within the jurisdiction of the administrative courts, acts of the State in connection with private administration must be sought before the ordinary courts. (19) However, even in the case of acts of public administration the victim may, where there has been a criminal offence, seek reparation from the official alone by making a civil claim which will fall to be examined by the criminal courts.

35. In the Netherlands the victim may obtain reparation exclusively from the State in certain cases (20) and/or against the official; the liability of the authorities and/or the official is determined in accordance with the rules of civil law.

36. In France a special system (21) applies to offenses committed by members of the public education system, in which State liability is substituted for that of the official. In the event of personal fault on the part of the official or a fault committed in the course of his duties, the victim can bring proceedings in the ordinary courts, which apply the rules of the Civil Code; the criminal courts are not excluded, (22) and where appropriate the civil claim against the State is joined to the criminal proceedings against the official. (23)

37. In Luxembourg the Constitution (24) does not allow proceedings having civil rights as their subject-matter to be removed from the civil courts. Proceedings are rarely brought against a teacher because the loss is covered by compulsory accident insurance, and the victim can take action only in the event of intentional fault by the person responsible. Notwithstanding that insurance, liability is predominantly civil in nature.

38. In Germany, before the introduction of Article 34 of the Basic Law, the victim had to make a claim (Paragraph 839 of the BGB) against the official in the civil courts, which applied the rules of civil liability. (25) Since that liability was considered particularly onerous, the State itself now assumes sole responsibility for reparation for damage such as that referred to by the national court, but may, in the event of serious fault, bring recourse proceedings against its official. Academic writing is divided as regards how such an action is to be characterized: some writers consider that it is of a civil nature, (26) while others take the view that it is of a public nature. (27) By a Law of 26 June 1981, the State intended to repeal Paragraph 839 and introduce liability in public law. However, that law was declared unconstitutional by the Bundesverfassungsgericht (Federal Constitutional Court). Although the nature of the victim' s claim against the State is uncertain, the ordinary courts none the less have sole jurisdiction and apply the rules of civil law.

39. In Greek law, on the other hand, an action of this type must be brought against the official and the State and liability is a matter of public law.

40. Examination of the various national laws therefore shows that the liability of the State and/or of the official is, in almost all of those laws, either of a purely civil nature or of a predominantly private-law nature. There are, however, some special features regarding the circumstances giving rise to and the form of the liability, which may be either excluded or exclusive, or vicarious or joint and several, none of this, however, entailing any change in the nature of the action.

41. Those, then, are the general principles emerging from the legal systems of the various Contracting States. An action of the type in point in this case must therefore be regarded as a civil matter within the meaning of Article 1 of the Convention.

42. Let us now turn to the nature of this action where the accident, like the one to which the national court refers, is covered by a social insurance scheme governed by public law. Can the existence of such a scheme have the effect of altering the original classification of the action?

43. It follows from the judgments in LTU v Eurocontrol and Netherlands v Rueffer, cited above, that proceedings do not fall within the scope of the Convention:

° if their subject-matter is an act of a public authority acting in the exercise of public powers;

° if the right on which the proceedings are founded has its source in such an act.

44. In line with that reasoning, it must be considered that where the right on which the action is based originates not in an act of the public authority acting in the exercise of public powers, but in a breach by a public servant of his official duties, the consequences of his liability being borne by an insurance scheme governed by public law, the existence of such insurance, which is not among the criteria established by this Court, cannot exclude from the scope of the Convention an act which, by its nature, falls within it.

45. No derogation from the free movement of judgments can be accepted on the sole ground that a signatory State is involved in a dispute: the concept of administrative matters referred to in Article 1 must be construed narrowly.

46. The Convention does, moreover, refer to such disputes: it covers proceedings concerned with designs, trade marks and patents which may be brought by a public authority owning intellectual property against a private person (Article 16).

47. Furthermore, the fact that the administrative courts have jurisdiction is not sufficient to preclude proceedings before them from the scope of the Convention. The French and Belgian Conseils d' État and the Bundesverwaltungsgericht, among other courts, are empowered under Article 2 of the Protocol on the interpretation of the Convention by the Court of Justice to request the Court to give preliminary rulings on questions of interpretation. (28)

48. That concept of administrative matters must cover only the sphere in which the State is clearly acting in the full exercise of its powers. Here I am adopting the concept of sovereignty referred to in the Schlosser Report:

"In the legal systems of the original Member States, the State itself and corporations exercising public functions such as local authorities may become involved in legal transactions in two ways. Having regard to their special functions and the fact that they are formally part of public law they may act outside private law in a 'sovereign' capacity ... The State and public corporations can also incur tortious liability in the same way as private individuals, for example as a result of a traffic accident in which an official car is involved." (29)

49. I am therefore unable to subscribe to the German Government' s assertion that damages claimed from the State arising from "breach of a public-service obligation" (30) necessarily come under the heading of administrative matters.

50. That concept of "public service" is undoubtedly recognized in a number of national legal systems, but, in the interest of maintaining uniformity in the law emanating from the Convention, cannot prevail for the purposes an independent classification of administrative matters.

51. As the case-law of the Court makes clear, disputes between a private person and a public person not acting in the exercise of public powers fall within the scope of the Convention, no matter what classification is given to such disputes in national law.

52. A claim against a servant of a signatory State must therefore come within the scope of the Convention when the acts in question do not entail the exercise of public powers.

53. Since the dispute comes within the scope of the Convention, it is necessary to answer the other questions submitted by the Bundesgerichtshof.

54. Let me begin by considering the first of them.

55. May an interested third party contest, under the second paragraph of Article 37, the judgment given on the appeal provided for in Article 36 even though he was merely an intervener in that appeal, where domestic law provides for such an appeal?

56. Such a possibility cannot be accepted, since, in the context of Article 36, the fact that an appeal may be brought by an interested third party under domestic law has never been taken into consideration in the case-law of the Court.

57. It follows from the judgment in the Deutsche Genossenschaftsbank case (31) that the principal objective of the Convention is to simplify enforcement procedures:

"In order to attain that objective the Convention established an enforcement procedure which constitutes an autonomous and complete system, including the matter of appeals". (32)

58. It would therefore be wrong to analyse Article 37 in isolation when the link between that article and Article 37 is clear.

59. Article 36 determines the persons entitled to appeal against a decision authorizing enforcement and the period within which that right must be exercised. Article 37 designates the courts with jurisdiction to determine such appeals (paragraph (1)) and the remedies available against the judgments given by those courts (paragraph (2)). (33)

60. On the other hand, Article 37 does not specify the parties entitled to contest the decision authorizing enforcement. It is therefore necessary to refer to the concept of "party" in Article 36.

61. That narrow construction of Article 37 is consistent with the Court' s judgment in the Brennero case. (34)

"Under the general scheme of the Convention, and in the light of one of its principal objectives which is to simplify procedures in the State in which enforcement is sought, that provision cannot be extended so as to enable an appeal in cassation to be lodged against a judgment other than that given on the appeal".

62. The Court also expressly stated in the judgment in van Dalfsen v van Loon (35) that the second paragraph of Article 37 must be narrowly construed.

63. As may be seen from the Court' s interpretation of Article 36, that provision

"excludes procedures whereby interested third parties may challenge an enforcement order under domestic law". (36)

Similarly, a third party cannot be allowed to appeal under the second paragraph of Article 37.

64. It is to that effect that I propose that the Court answer the first question.

65. That, in my view, is consistent with the objective of the Convention, which is to facilitate the freedom of movement of judgments within the Community, without however compromising the protection of the rights of third parties.

66. That protection will be fully guaranteed by the national law of each State, not at the stage of the decision authorizing enforcement but at the stage of actual enforcement, which does not come within the Convention. (37)

67. As we know, the Convention applies only to proceedings whereby a decision (or an authentic instrument) issued in a Contracting State can be made enforceable in another Contracting State; on the other hand, it leaves the detailed rules regarding execution of the enforcement order to the jurisdiction of the domestic legal orders of the signatory States.

68. The last two questions concern the rules relating to the principle of respect for the rights of defence in Article 27(2) and give the Court its first opportunity to consider the relevance and, possibly, the scope of that provision in a situation where the defendant is not in default of appearance.

69. Allow me briefly to mention the logic of the system underlying the Brussels Convention.

70. The Convention is based on the principle of the recognition of judgments delivered by the national courts with a view to ensuring and facilitating the movement of judgments within the European Community. Thus the free movement of judgments takes its place alongside the four fundamental freedoms set out in the Treaty and bears witness to the Member States' desire to strengthen their links through the Convention.

71. The principle of the recognition of judgments is based on the Member States' mutual trust in their respective legal systems and judicial institutions. (38)

72. This trust allows the Member States to waive their internal rules on the recognition and enforcement of foreign judgments. This prerequisite must remain unassailable, which explains why, for proceedings within the scope of the Convention, review of the legality of the foreign decision is confined to:

° public policy: Article 27(1);

° the rights of the defence: Article 27(2); and

° whether the judgment is irreconcilable with another judgment: Article 27(3).

73. The principle of respect for the rights of the defence is also enshrined in Article 20, which provides that a court is to declare of its own motion that it has no jurisdiction if the defendant fails to enter an appearance unless its jurisdiction is derived from the provisions of the Convention; it also provides that a court is to stay proceedings so long as it is not shown that the defendant in default of appearance was able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence.

74. It is also appropriate to refer to Article 46, under which a party seeking recognition or applying for enforcement of a judgment is to produce the original or a certified copy of the document which establishes that the party in default was served with the document instituting the proceedings.

75. Article 27(2) provides that "a judgment shall not be recognized ... if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence".

76. Therefore the series of provisions designed to protect the rights of the defence is fundamentally concerned solely with defendants in default of appearance.

77. Furthermore, the Jenard Report, it should be noted, refers to such protection only in relation to this category of defendants. (39)

78. However, in order usefully to answer the third question submitted by the Bundesgerichtshof, can there be said to be an infringement of the rights of defence where the document which instituted the proceedings is vague as regards the quantum of the claim, even though the defendant is not in default of appearance?

79. Although, as I have observed, questions have been referred to the Court for a preliminary ruling on Article 27(2), that provision has never been relied upon in favour of a defendant who is not in default of appearance.

80. It certainly seems to follow from the judgment of the Court in Klomps v Michel (40) that only the capacity of "defendant in default of appearance" can justify the applicability of Article 27(2). The Court stated that that provision

"is intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised". (41)

81. That objective of protecting a defendant in default of appearance was repeated in the Minalmet judgment, (42) according to which

"Article 27, point 2, of the Brussels Convention is intended to protect the rights of the defence and to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised". (43)

82. In order to be applicable, Article 27(2) necessarily implies, in my view, that the defendant is in default of appearance, and must have been found to be so by the court of the State where the proceedings were first brought; I shall attempt to define "in default" below, in relation to the final question referred by the Bundesgerichtshof.

83. If a defendant who has appeared were able to rely on that provision, then the court of the State in which enforcement is sought would be empowered to review the finding, already made, after an inter partes hearing, by the court of the State in which the judgment was given, that the proceedings before it were in no way defective.

84. It cannot in such circumstances be permissible to review the questions whether the notice to appear was in order or served in sufficient time for the party concerned to arrange for his defence. The defendant, or his counsel, had the opportunity before that court to object that the document instituting the proceedings was defective and to submit defence arguments going both to admissibility and the merits. He was also in a position to make use of the legal remedies available to him if the decision appeared unfavourable to him.

85. That, moreover, is the position adopted by Messrs Gothot and Holleaux, among others, who express themselves as follows:

"The question whether the proceedings before the court first seised were defective may be reviewed only in the case of the recognition and enforcement of judgments given in default ... It is therefore only when the court before which enforcement is sought is faced with a judgment given following proceedings of an inter partes nature before the court first seised, but in which the defendant was in default of appearance, that it is necessary to verify whether the document which instituted the proceedings or an equivalent document was served or notified in proper form and in sufficient time to enable the defendant to arrange for his defence." (44)

86. Similarly, Mr Droz considers that:

"The judgment must have been given in default.

... Article 27(2) refers only to cases where the defendant is in default of appearance. In the Convention the view seems to be taken that if the defendant has appeared, even belatedly, he will have been able to assert his rights and, in particular, request and obtain the necessary time to prepare his defence ...". (45)

87. Under those circumstances, Article 27(2) must be declared inapplicable where the defendant is not in default of appearance.

88. However, is that necessarily so in the case of a defendant who, intentionally or inadvertently, did not express a view on the civil claim?

89. That is the subject-matter of the fourth and final question.

90. Article 27, point 2, does not define what is meant by "default of appearance".

91. Must that term be defined independently or with reference to the domestic law of the State in which the judgment was given?

92. It would appear that, since that concept depends on the assessment made by the court first seised under its domestic law, it must be interpreted by reference to that law.

93. I would refer, here again, to the judgment in Klomps v Michel. The Court had to decide whether a judgment given in default had to be regarded as such even though the party against whom enforcement was sought had lodged an objection against that decision and that objection had been adjudged inadmissible by the court of the State in which the judgment was given.

94. The Court held that:

"In the case with which the question is concerned the defendant did not submit a defence as to the substance of the case before the court first seised. The dismissal of the objection to the enforcement order as inadmissible means that the decision given in default remains intact. For that reason the objective of Article 27, point 2, requires that in the case with which this question is concerned the court in the State in which enforcement is sought should carry out the examination prescribed by that provision.

The reply ... should therefore be that Article 27, point 2, remains applicable where the defendant has lodged an objection against the decision given in default and a court of the State in which the judgment was given has held the objection to be inadmissible on the ground that the time for lodging an objection has expired." (46)

95. The Court therefore considered that it was the defendant' s default, as determined by the court of the State in which the judgment was given, that enabled the court in which enforcement was sought to apply Article 27(2).

96. Likewise, it follows from the judgment in Lancray v Peters (47) that

"[t]he Brussels Convention does not determine which law is to be applied to that question [whether the document instituting the proceedings was properly served]. Since the rules governing the service of the document instituting the proceedings form part of the procedure before the court of the State in which judgment was given, the question whether service was duly effected can only be answered by reference to the law to be applied by that court, including any relevant international conventions". (48)

97. It is therefore by application of the law of the State in which judgment was given that it must be determined whether or not a defendant was in default of appearance. (49)

98. Provided that the defendant appeared according to the law of the State in which the judgment was given, the decision cannot be regarded as being given in default of appearance; in that connection there is no need to take into consideration the fact that the defendant, whether intentionally or inadvertently, failed to respond to the claims of the civil parties.

99. I therefore propose that the Court rules as follows:

(1) The concept of "civil and commercial matters" within the meaning of the first paragraph of Article 1 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters includes proceedings in which an individual seeks compensation for loss caused by the breach by a public servant of the duties entrusted to him, notwithstanding the fact that the consequences are covered by insurance governed by public law.

(2) Article 37(2) of the Convention precludes any appeal by interested third parties against a judgment given in pursuance of Article 36 of the Convention even though such a remedy is available to those third parties under the law of the State in which enforcement is sought.

(3) Article 27(2) of the Convention is not applicable where the defendant was not in default of appearance in the proceedings before the court first seised; the concept of default of appearance is to be assessed according to the law of the State in which the judgment was given.

(\*) Original language: French.

(1) ° OJ 1978 L 304, p. 1.

(2) ° Title I, paragraph 5.

(3) ° OJ 1979 C 59, p. 1.

(4) ° Page 9 of the Report.

(5) ° See Article 2 of the Treaty.

(6) ° Case 29/76 [1976] ECR 1541.

(7) ° Point 3.

(8) ° Point 4, first paragraph.

(9) ° Point 4, second paragraph.

(10) ° Case 814/79 [1980] ECR 3807.

(11) ° Paragraphs 9 and 10.

(12) ° Paragraph 11.

(13) ° See the Schlosser Report (OJ 1979 C 59, p. 82).

(14) ° Article 991(1) and (2) of the Code of Procedure.

(15) ° See Skovgaard, H.: Offentlige myndigheders erstatningsanvar, Copenhagen, 1983, p. 17.

(16) ° Judgments of the Tribunal Supremo of 8 November 1991 (RJA 7989, f.d. tercero), 21 June 1991 (RJA 4780, f.d. tercero) and 6 January 1991 (RJA 355, f.d. primero).

(17) ° Judgment of the Tribunal Supremo, 3 December 1991 (RJA 8965, p. f.d. sexto).

(18) ° See Nals, E.: La Constituzione italiana nell' interpretazione della Corte Costituzionale, Rome, 1971, p. 708.

(19) ° João de Castro Mendes: Direito Civil, teoria geral, vol I, Lisbon, 1978, p. 34.

(20) ° Van der Does, J.A.E. and de Wijkerslooth, J.L.: Onrechtmatige overheidsdaad, monografieën Nieuw BW 48, Series B, Deventer, 1985, p. 88.

(21) ° Law of 5 April 1937.

(22) ° Conseil' d' État, 10 June 1988, D 1989, p. 120.

(23) ° Chambre Mixte, 23 April 1976, D. 1977-21, note by Martin.

(24) ° Article 84 of the Constitution of 17 October 1868.

(25) ° Bundesgerichtshof, 20 March 1961, BGHZ 34, p. 375, at 380.

(26) ° Bartlsperger: Die Folgen von Staatsunrecht als Gegenstand der Gesetzgebung in Neue Juristische Wochenschrift, 1968, p. 1697 at 1701.

(27) ° Bettermann, annotation under Bundesgerichtshof of 10 April 1961 in Monatsschrift fuer Deutsches Recht, 1961, p. 837.

(28) ° See in that respect paragraph 14 of the Rueffer judgment, cited above.

(29) ° OJ 1979 C 59, p. 83.

(30) ° Observations of the German Government, p. 7 of the French translation.

(31) ° Case 148/84 Deutsche Genossenschaftsbank v SA Brasserie du Pêcheur [1985] ECR 1981.

(32) ° Paragraph 17.

(33) ° On this point, see Gothot and Holleaux: La Convention de Bruxelles du 27 Septembre 1968, Jupiter, p. 197, No 369.

(34) ° Case 258/83 Brennero v Wendel [1984] ECR 3971.

(35) ° Case C-183/90 van Delfsen v van Loon [1991] ECR I-4743, paragraph 19.

(36) ° Paragraph 17 of the Deutsche Genossenschaftsbank judgment.

(37) ° See, on that point, Gaudement Tallon, H.: Revue critique de droit international privé, 1986, pp. 345 to 348.

(38) ° See, on this point, Pluyette, G.: La convention de Bruxelles et les droits de la défense , p. 427, Études offertes à Pierre Bellet, Litec.

(39) ° OJ 1979 C 59, p. 44.

(40) ° Case 166/80 [1981] ECR 1593.

(41) ° Paragraph 9, emphasis added.

(42) ° Case C-123/91 Minalmet v Brandeis [1992] ECR I-5661.

(43) ° Paragraph 18.

(44) ° Gothot and Holleaux: La convention de Bruxelles du 27 Septembre 1968, Jupiter, p. 151, No 262.

(45) ° Droz: Compétence judiciaire et effets des jugements dans le marché commun, Dalloz, p. 315, No 501.

(46) ° Paragraphs 12 and 13, emphasis added.

(47) ° Case C-305/88 [1990] ECR I-2725.

(48) ° Paragraph 29, emphasis added.

(49) ° See Huet, André: Journal de droit international privé, Clunet, 1981, p. 893.*

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