CELEX: 61976CC0029
Language: en
Date: 1976-09-15
Title: Opinion of Mr Advocate General Reischl delivered on 15 September 1976. # LTU Lufttransportunternehmen GmbH & Co. KG v Eurocontrol. # Reference for a preliminary ruling: Oberlandesgericht Düsseldorf - Germany. # Case 29-76.

OPINION OF MR ADVOCATE-GENERAL REISCHL
      DELIVERED ON 15 SEPTEMBER 1976 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The question referred for a preliminary ruling, on which I am giving opinion today, relates to the expression ‘civil and commercial matters’, which appears in Article 1 of the Convention on jurisdiction and the enforcement of Judgments in Civil and Commercial matters — in short the Convention on Jurisdiction — and which defines the Convention's field of application. In this connexion the Oberlandsgericht, Düssel-dorf, pursuant to the Protocol on the interpretation of the said Convention, has raised the question whether the interpretation of the said expression is governed by the law of the State in which the judgment on the claim was given (in this case Belgium) or the law of the State in which the order for its enforcement has to be issued (in this case the Federal Republic of Germany).
      I must first of all make some preliminary observations on the facts underlying this question.
      On 13 November 1960 an international agreement for cooperation in connexion with the safety of air navigation was concluded by several States, inter alia the Member States of the Community except for Denmark and Italy. It set up the European Organization for the Safety of Air Navigation — Eurocontrol — an international organization having a legal personality and its seat in Brussels.
      So called route charges are levied on aircraft owners who wish to make use of the air safety services provided by Eurocontrol. The levying of these charges is authorized not only by the clauses of the agreement but also by bilateral and multilateral agreements, in the case of the Federal Republic of Germany by a regulation of the Federal Minister for Transport of 27 October 1971. Paragraph 3 of this regulation prescribes that the charges are payable in Brussels; as far as the rates of the charges, the detailed rules for their application and the procedure for their collection are concerned reference must be made to an order made on 16 June 1971 by the executive organ of Eurocontrol, the agency providing the air safety service.
      Relying on these provisions Eurocontrol issued bills for the charges payable for the period from December 1971 to October 1972 to the German air transport undertaking LTU, the appellant in the main action. In these bills there is a clause conferring jurisdiction on the Belgian courts, in the same way moreover as the conditions which regulate payment of the charges for using the services and which constitute Appendix 2 of the Annex to the beforementioned order of 16 June 1971 issued by the Eurocontrol agency mention that the Belgian courts have jurisdiction.
      As LTU disputed the validity of the account of charges, Eurocontrol sued in the Tribunal de commerce, Brussels, for part of the amount claimed. This court ordered LTU to pay the charges. In these proceedings it is important to note that the court refused to uphold the plea that the claim for payment of the charges was a matter governed by public law. On the contrary it specifically held that the charges are not to be regarded as taxes and that the determinative factor must be that the payment of the charges is ascribable to operations which must be described as commercial.
      It is Eurocontrol's intention to enforce this judgment, which was declared to be provisionally enforceable and in the meantime has become final, in the Federal Republic of Germany, because both the appeal to the Cour d'Appel in Brussels and the appeal on a point of law to the Belgian Cour de Cassation were dismissed. For this purpose it sought on the basis of Article 31 of the Convention on Jurisdiction leave to enforce the judgment and the issue of an order for its enforcement. Eurocontrol produced as proof of service of the judgment in accordance with Article 47 of the Convention on Jurisdiction a certificate of service issued by the Registrar of the Amtsgericht Dusseldorf. By an order of 13 August 1974 leave to enforce the judgment was granted and an order for its enforcement was issued.
      However on appeal by LTU to the Oberlandesgericht, Düsseldorf, the 19th Civil Senate of that court by an order of 24 March 1975 set aside the order of 13 August 1974 and dismissed the application for leave to enforce the judgment. The decisive factor for the Oberlandesgericht was that it did not feel able to find that there had been proper service of the judgment of the Tribunal de commerce, Brussels. In the meantime another Civil Senate of the Oberlandesgericht, Dusseldorf, had made an order for the annulment of the certificate of service of the Registrar of the Amtsgericht, Düsseldorf, on the ground that its content — in fact the certificate refers to the service of a statement of claim — was incorrect.
      On appeal by Eurocontrol on a point of law to the Bundesgerichtshof that court rejected the view of the Oberlandesgericht, Düsseldorf, on proof of service and pointed out that the effectiveness of the service, for which proof was available, is not invalidated by the setting aside of the certificate of service. The Bundesgerichtshof also declared that the negative order of the Oberlandesgericht, Düsseldorf, could not be upheld on other grounds. The Belgian court, to the jurisdiction of which LTU has submitted, regarded the issue as a commercial matter. This was binding on the court of the State in which enforcement was sought, since the question whether a judgment is to be regarded as having been given in a civil or a commercial matter must be answered in accordance with the law of the State in which the judgment was given. As, however, further findings on the final nature of the Belgian judgment were necessary — its finality had not then been established and, being a question of fact, could not be ascertained by the Bundesgerichtshof itself — the matter was referred back to the Oberlandesgericht, Düsseldorf.
      The Oberlandesgericht, Düsseldorf, when it reconsidered the matter, took the view that it could not confine itself to an examination of the only question which in the view of the Bundesgerichtshof was still outstanding but had in addition — apparently because it did not share the view of the Bundesgerichtshof on this point — to go into the question of the proper construction of the expression ‘civil and commercial matters’. Consequently by an order of 16 February 1976 it stayed the proceedings and referred the question which I mentioned at the outset to the Court of Justice for a preliminary ruling.
      It is perhaps also of interest to note that LTU for its part has brought the matter of Eurocontrol's bills for outstanding charges before the appropriate German administrative court (Verwaltungsgericht). This court however dismissed the application as being inadmissible, because the German courts did not have jurisdiction. The Oberverwaltungsgericht for the Land of North Rhine-Westphalia in its judgment of 7 July 1975 on the appeal against the judgment of the Verwaltungsgericht held that the action for annulment was inadmissible, because the bills for the charges payable to Eurocontrol were not administrative measures capable of being challenged under German law. No decision has apparently yet been made as to the alternative application for a declaration that the charges are not due and owing, and similarly the decision on the appeal on a point of law to the Bundesver-waltungsgericht against the judgment of the Oberverwaltungsgericht is still awaited.
      
               1. 
            
            
               Let me preface my opinion on this case with two preliminary observations.
               
                        (a)
                     
                     
                        The first relates to the application in time of the Convention on Jurisdiction and can be dealt with quite briefly.
                        The distinguishing feature of this case is that the action was brought in Brussels before the entry into force of the Convention and that the court made its decision afterwards. Under the second paragraph of Article 54 this is of no importance ‘if jurisdiction was founded upon rules which accorded with those provided for either in Table II of this Convention or in a convention concluded between the State in which judgment was given and the State in which recognition or enforcement is sought and which was in force when proceedings were instituted’. In my view the Commission has convincingly shown that these conditions have been fulfilled in this case. As far as the territorial jurisdiction of the Brussels court is concerned reference can in fact be made not only to the German-Belgian Convention of 30 June 1958 but also to the provisions in the Eurocontrol order of 16 June 1971, which has already been mentioned, and in the Regulation of 27 October 1971 of the Federal Minister for Transport, which provides that air safety charges are payable in Brussels.
                     
                  
                        (b)
                     
                     
                        The second preliminary observation relates to Eurocontrol's objection that the reference is inadmissible.
                        Eurocontrol submits that the court applying for a preliminary ruling has already given its ruling in the appeal proceedings and the matter was then brought before the Bundesgerichtshof. The latter court only referred the matter back to the Oberlandesgericht, because in its view there were still findings to be made on the question whether the judgment to be enforced was final. However a reference to the Court for an interpretation of the Convention on Jurisdiction is unnecessary for such a finding of fact. Furthermore it is significant that the Bundesgerichtshof, without considering a reference to be necessary, has already ruled on the problem which has arisen in this case. The Oberlandesgericht is under national law bound by this ruling.
                        This objection is clearly unfounded.
                        That can be said straight away, although there is no doubt that in the context of the Protocol on Interpretation the Court has on occasion to consider national law, and this is so whenever the question arises whether a reference from a court or tribunal acting as a court of appeal is admissible. However it is something entirely different to examine national law from the point of view of relevance to the decision, that is to say, to look into the question of the extent of the powers of an appeal court after a superior court has referred a matter back to it and into the question whether therefore the interpretation requested is necessary to enable the subsequent judgment to be given. The Court has never carried out such an examination of national law and with good reason.
                        On the other hand, so far as the right of courts other than those of last resort to refer questions to the Court when they have to make a decision in cases referred back to them is concerned, the case-law is clear. Thus the Court in Case 166/73 (Rheinmüblen-Düsseldorf v Einfubr- und Vorratsstelle für Getreide und Futtermittel, Judgment of 16 January 1974, [1974] ECR 37 et seq.)
                            found and in Case 146/73 (Rheinmühlen-Düsseldorfw Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Judgment of 12 February 1974, [1974] ECR 147 et seq.)
                            confirmed that the national court has an unfettered right to refer questions to the Court of Justice. It went out of its way to emphasize that a court which is not one of last instance ‘must be free, if it considers that the ruling on law made by the superior court could lead it to give a judgment contrary to Community law, to refer to the Court questions which concern it’. It is true that these rulings were given in proceedings under Article 177. However I have no doubt that because of the similarity of the procedure under the Protocol on Interpretation for referring questions to the Court these rulings must also apply to that procedure. In particular, so far as this point is concerned, no importance can be attached to the fact that in connexion with the duty of supreme courts to request preliminary rulings the words ‘if that court or tribunal consider that a decision on the question is necessary to enable it to give judgment’ are found in the Protocol on interpretation, and only in that Protocol, as it has been obvious for a long time that a corresponding rule also applies without any express mention to the third paragraph of Article 177.
                     
                  
         
               2. 
            
            
               The question referred by the Oberlandesgericht, Dusseldorf, which I will now deal with, relates — as I have already said — to the field of application of the Convention on Jurisdiction. In this connexion problems arise because its scope — if the matters to which it does not apply, which are specifically mentioned in the second paragraph of Article 1 of the Convention are disregarded — is simply defined by use of the expression ‘civil and commercial matters’, without there being any indication of the way in which this expression is to be interpreted.
               It is therefore not surprising that this particular problem, soon after the Convention had been drawn up, became the subject of academic scrutiny and that it has already played a part in national case-law. In this connexion a large number of proposals for solutions were worked out — the Commission has in fact described them in detail — proposals which, moreover, are in no way exhausted by the alternative which appears in the question as formulated.
               Some people take the view, which I will now outline briefly, that the law of the State in which enforcement is sought is applicable, an argument upon which LTU too, mainly relies.
               Others on the contrary advocate the law of the State in which judgment was given. Sometimes this is done without any reservation, sometimes importance is attached to the question whether there is any express designation in the judgment which it is sought to enforce. If not, then designation under the law of the State in which enforcement is sought is also regarded as permissible.
               There are other views which, where designation by the State in which judgment was given is recognized in principle, make different reservations.
               Thus there is the view that in proceedings brought before the entry into force of the Convention it cannot be accepted that the court before which enforcement is sought is bound by the designation made in the State in which judgment was given, because the first court was not bound by the Convention when it gave judgment. Others deny that the designation made in the State in which judgment was given is binding in matters clearly governed by public law; at the very least it is wondered whether recourse may be had to the exception of public policy as mentioned in Article 27 of the Convention.
               There is an entirely different view advocated by those who argue that the expression ‘civil and commercial matters’ is not to be defined by reference to national law but that on the contrary it must be assumed to be an independent concept just as Community law concepts are independent The Italian Government and the Government of the Federal Republic of Germany have expressed their support for this view. In considering this question the Italian Government, relying on bilateral agreements and provisions of the EEC Treaty (Article 84) comes to the conclusion that sea and air transport do not fall within the field of application of the Convention. The Government of the Federal Republic of Germany has qualified its view by an alternative suggestion that the crucial question for the second court might be whether the definition of the expression in question by the first court was defensible and that only if there are grave doubts in this respect should consideration be given to refusing the matter to the Court for clarification of the delimitation question.
               In dealing with this problem and considering the arguments put forward in support of the various solutions, I was at first strongly attracted to the view that the expression 'civil and commercial matters must be assumed to have a meaning determined by Community law. Unquestionably its great advantage — the Commission says that it is an ideal solution — is that it secures a uniform application of the Convention and binds the Member States equally. One of the chief advantages would be to prevent any risk of the expression, which is of importance both in the section on jurisdiction as well as that on enforcement, being interpreted in different ways. To proceed in this way would moreover mean that, in the absence of an accurate definition, the same methods would be used as those adopted in cases where there are gaps in Community law; the basic concepts common to the Member States would have to be ascertained, perhaps taking into account the bilateral and multilateral conventions of the Member States which were earlier in force. In any case it would certainly not be practicable to proceed in the way which LTU's representative — I will comment on this basic attitude later — considers to be correct and only to regard those matters as civil and commercial, which in the opinion of the Member State accepting the widest definition of the field of public law merits such a designation; for this would mean taking as one's basis the legal system of one Member State, but not common concepts. It is also clear that the view of the Italian Government that matters relating to sea and air transport were not included in the Convention cannot be accepted. This view cannot be inferred from Article 84 of the EEC Treaty — its functions under the Treaty are quite different — and further a comparison with other Treaties is not conclusive for the very good reason that under the Convention on Jurisdiction air and sea transport are not mentioned as one of the specific fields to which the Convention does not apply. On the other hand it is interesting to note that in the latest draft of an agreement for the accession of the new Member States sea and air transport are in no way excluded that, on the contrary, bearing in mind that in their case too a field of civil law is concerned, the assumption is that the definition of the field in question is arrived at by following criteria which are generally accepted as being valid.
               The deciding factor would therefore have to be whether the relationship of superordination and subordination, which is the distinguishing feature of public law relations, existed when Eurocontrol — those functions of air safety which are plainly governed by police law are not at issue in this connexion — prosecuted its claim for charges. That it is possible by taking this view of the problem to hold that the Convention on Jurisdiction does apply to the facts in the main action results in my opinion from two considerations. First, as is made clear by the report sent to the Governments with the draft Convention, the Convention was intended by its authors to be given a wide interpretation. Secondly it is important to note that according to the provisions which I mentioned at the beginning of my opinion Eurocontrol's charges are to be regarded as consideration for services rendered and that the Belgian civil courts were given jurisdiction to enforce their collection.
               Nevertheless, however regrettable this may be, serious objections can be raised against the view that the expression ‘civil and commercial matters’ is governed by Community law.
               In view of the divergent interpretations in the various Member States it must be conceded straight away that the definition of a Community law concept of civil and commercial matters would be anything but easy; this would apply to an even greater degree after Great Britain acceded to the Convention, because in the English legal world the difference between civil and public law is far less marked than on the continent. For this reason the experts who drafted the Convention have not dared to attempt a definition and that is why there are only certain negative attempts at definitions in the draft of an Accession Agreement with reference to tax, customs and administrative matters.
               The working out of a Community law concept, and this is the experience of the courts in the Member States which acknowledge such a distinction, would therefore undoubtedly be time-consuming and consequently entail a longer period of uncertainty. This would mean that frequendy — and whenever an element of public law emerges — references would be made to the Court for a preliminary ruling and this would happen even if the alternative argument of the Government of the Federal Republic of Germany is accepted, i.e. whenever attention is drawn to the fact that serious doubts exist. The enforcement proceedings would thereby be delayed and could not be prosecuted as expeditiously as the authors of the Convention undoubtedly imagined. The main purpose and the paramount objectives of the Convention do not therefore favour an interpretation which would involve such serious disadvantages as continuing uncertainty and delayed proceedings. In this connexion I need only recall the preamble to the Convention which stresses the need to expedite the enforcement procedure. I also refer to the Joint Declaration annexed to the Convention which states that the Convention is to be applied as effectively and uniformly as possible. Finally I refer to the abovementioned report on the Convention which speaks of encouraging to the maximum possible extent the mobility of judgments given in the Member States.
               If, however, the argument in favour of an independent Community law concept of ‘civil and commercial matters’ has to be dropped, if only for pragmatic reasons — the beforementioned report goes out of its way to emphasize that the Convention must be applied as pragmatically as possible — the only course which in fact remains open is to have recourse to national law. In principle therefore only the designation by the first court or by the court making the enforcement order can be decisive, that is to say, essentially a choise has to be made between the alternatives mentioned in the order making the reference, although naturally this does not mean — contrary to what was thought by one of the parties to the proceedings — that when the Court deals with the reference for a preliminary ruling it is in principle confined to the choices of interpretation which the court making the reference may have mentioned.
               As far as the two possible solutions which have been mentioned are concerned, it further becomes very quickly apparent that the arguments advanced in favour of a designation in principle under the law of the State in which enforcement is sought are hardly convincing.
               In this connexion LTU submitted that international treaties are in cases of doubt to be given a narrow interpretation and construed in such a way that they affect the sovereign powers of the contracting States to the least possible extent With reference to the Convention on Jurisdiction it stated that it cannot be assumed that the State in which enforcement is sought subjects itself, as it were, to foreign law without any express direction to that effect in the Convention and that in particular it is prepared to enforce judgments in matters which it regards as being governed by public law and in respect of which enforcement abroad is not in principle permitted. In my opinion this reasoning starts off on the wrong foot. It overlooks the fact that the Convention fulfils an important function within the framework of the Economic Community. It is intended to ensure that the facilitation of trade and commerce between States should be accompanied and complemented by the facilitation of legal intercourse and by a simplification of legal proceedings. For this reason and also by virtue of the fact that there is not a world of difference between the legal situation in the Member States, but more importantly because the legal and procedural guarantees are approximately the same, it is certainly inappropriate to accept as valid for the Convention principles of interpretation however justified they may be in the case of conventions of a public international law nature.
               On the other hand there are good reasons for accepting in principle as the deciding factor designation by the court of the State in which judgment was given.
               Thus it is to be inferred from the beforementioned report that one of the main purposes of the Convention is to strengthen the position of the courts of the State in which judgment was given. In the first place this is expressed — and the report refers to this, too — in the very wide rules for the recognition of judgments, which result in extending recognition on the widest possible basis. In fact the grounds for refusing to recognize a judgment are exhaustively enumerated in Articles 27 and 28 and that is why in legal articles the writers go so far as to talk about a presumption of recognition. On the other hand it is also expressed in the field of enforcement by Article 34 which provides that enforcement may only be refused for one of the reasons specified in Articles 27 and 28. Also there is in principle no review of jurisdiction, because according to the third paragraph of Article 28 the test of public policy may not be applied to the rules relating to jurisdiction. In particular the legality of judgments which have been given may not be reviewed.
               The view that the designation by the State in which the judgment was given is in principle the deciding factor as far as the expression 'civil and commercial matters is concerned is unquestionably the one which least corresponds to this basic trend which favours, in principle, making the decision in the State in which judgment was given the deciding factor. This is also the best way of adhering to the manifest aim of the Convention to ensure the greatest possible mobility of judgments as well as to the principle of ensuring that they are applied as effectively and as widely as possible. On the other hand a corresponding review by the State in which enforcement is sought would perhaps imperil the attainment of this objective and lead to differing enforcement procedures.
               I am therefore convinced that the question referred can only be answered in the way in which I have just described.
               Furthermore it is my impression that for the purposes of the judgment in the main action this basic view is quite sufficient. Contrary to the view advocated by LTU there is in fact no reason to doubt that the Belgian courts have expressly designated the dispute as a civil matter. In this respect it is enough that a request was made for legal assistance on the ground that the matter in question is a civil matter and the Tribunal de Commerce has dealt with the objection relating thereto raised by LTU. In addition the appeal court in its judgment dismissing the appeal expressly based itself on the Hague Convention on Civil Procedure of 1 March 1954 as far as the question of service is concerned. On the other hand it may also be well to recall what I said earlier in connexion with the designation of Eurocontrol's claim for payment of its charges in the light of common legal principles and which moreover appears to prove that there is relatively little danger of an incorrect classification of such matters.
               Viewed in this way there is therefore no reason for examining those other aspects of the problems dealt with which have been partially revealed during the proceedings. In particular there is now no need to consider how to proceed if in the State in which judgment was given no express designation was made — whether in such circumstances this question is determined by the State in which enforcement is sought and whether that State's own legal principles are applicable or whether, and this would unquestionably be time-consuming and onerous, it would be necessary to have recourse to the law of the State in which judgment was given.
               Similarly there is nothing in the present case to warrant an examination of the question whether in certain circumstances the designation might not have to be reviewed, perhaps having regard to the exception of public policy under Article 27 of the Convention, in extreme cases by the court in which enforcement is sought, in particular, for example, when endeavours are made to enforce what are clearly decisions given in matters of tax law and criminal law. In my view the further development of the law in this field should be awaited. When an appropriate occasion arises the necessary examination of these undoubtedly difficult questions can be carried out.
            
         
               3. 
            
            
               In view of the foregoing I suggest that the question referred by the Oberlandsgericht, Dusseldorf, be answered as follows:
               The first paragraph of Article 1 of the Convention on jurisdiction and the enforcement of Judgments in Civil and Commercial matters is to be interpreted as meaning that the courts of the State in which enforcement is sought are bound by the classification adopted by the courts of the State in which the judgment was given at least in those cases in which the latter courts have expressly designated the legal dispute in question as a civil or commercial matter.
            
         (
            1
         )	Translated from the German.