CELEX: 61983CO0080
Language: en
Date: 1983-11-09 00:00:00
Title: Order of the Court of 9 November 1983. # Habourdin International SA and Banque nationale de Paris v SpA Italocremona. # Reference for a preliminary ruling: Tribunale di Varese - Italy. # Case 80/83.

Avis juridique important

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61983O0080

Order of the Court of 9 November 1983.  -  Habourdin International SA and Banque nationale de Paris v SpA Italocremona.  -  Reference for a preliminary ruling: Tribunale civile e penale di Varese - Italy.  -  Case 80/83.  

European Court reports 1983 Page 03639 Spanish special edition Page 00999

PartiesSubject of the caseGroundsOperative part
Keywords

CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS - PROTOCOL ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION - NATIONAL COURTS WHICH MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING - COURTS SITTING ' ' IN AN APPELLATE CAPACITY ' '  - CONCEPT - ITALIAN COURT SITTING IN PROCEEDINGS AT FIRST INSTANCE BROUGHT AGAINST A PAYMENT ORDER MADE UNDER A SUMMARY PROCEDURE - EXCLUSION  ( PROTOCOL OF 3 JUNE 1971 , ART . 2 ( 2 ))    

Parties

IN CASE 80/83 REFERENCE TO THE COURT BY ORDER OF THE PRESIDENT OF THE TRIBUNALE DI VARESE ( DISTRICT COURT , VARESE ) OF 23 APRIL 1983 FOR A PRELIMINARY RULING IN THE JOINED PROCEEDINGS  HABOURDIN INTERNATIONAL SA , PARIS ,   AND  BANQUE NATIONALE DE PARIS , PARIS AND MILAN ,   V  SPA ITALOCREMONA,VARESE-GAZZADA ,    

Subject of the case

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ,  

Grounds

BY ORDER OF 23 APRIL 1983 , RECEIVED AT THE COURT ON 6 MAY 1983 , THE PRESIDENT OF THE TRIBUNALE DI VARESE , PURSUANT TO THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( HEREINAFTER REFERRED TO AS ' ' THE BRUSSELS CONVENTION ' ' ) SUBMITTED A QUESTION FOR A PRELIMINARY RULING ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THAT CONVENTION .   THAT PROTOCOL PROVIDES THAT ONLY CERTAIN COURTS , REFERRED TO IN ARTICLE 2 THEREOF , MAY REQUEST THE COURT OF JUSTICE TO GIVE PRELIMINARY RULINGS ON THE INTERPRETATION OF THE BRUSSELS CONVENTION , SO THAT , IN THIS INSTANCE , IT IS NECESSARY TO CONSIDER WHETHER THE COURT OF JUSTICE HAS JURISDICTION TO REPLY TO THE QUESTION SUBMITTED TO IT .   INDENTS 1 AND 3 OF THE ABOVE-MENTIONED ARTICLE 2 - THE FIRST DIRECTLY AND THE SECOND BY REFERENCE TO ARTICLE 37 OF THE BRUSSELS CONVENTION - LIST , EXPRESSLY AND EXHAUSTIVELY , THE COURTS WHICH MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING . ARTICLE 2 ( 2 ) STATES IN ADDITION THAT ' ' THE COURTS OF THE CONTRACTING STATES WHEN THEY ARE SITTING IN AN APPELLATE CAPACITY ' '  MAY ALSO REQUEST PRELIMINARY RULINGS .   ARTICLE 3 OF THE PROTOCOL PROVIDES THAT :    ' ' 1 . WHERE A QUESTION OF INTERPRETATION OF THE CONVENTION OR OF ONE OF THE OTHER INSTRUMENTS REFERRED TO IN ARTICLE 1 IS RAISED IN A CASE PENDING BEFORE ONE OF THE COURTS LISTED IN ARTICLE 2 ( 1 ), THAT COURT SHALL , IF IT CONSIDERS THAT A DECISION ON THE QUESTION IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT , REQUEST THE COURT OF JUSTICE TO GIVE A RULING THEREON .        2.WHERE SUCH A QUESTION IS RAISED BEFORE ANY COURT REFERRED TO IN ARTICLE 2 ( 2 ) OR ( 3 ), THAT COURT MAY , UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH 1 , REQUEST THE COURT OF JUSTICE TO GIVE A RULING THEREON . ' '  SINCE THE ITALIAN TRIBUNALI ( DISTRICT COURTS ) ARE NOT REFERRED TO EITHER IN ARTICLE 2 ( 1 ) OF THE PROTOCOL OR IN ARTICLE 37 OF THE BRUSSELS CONVENTION , THEY MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING ON A QUESTION OF INTERPRETATION ONLY WHEN THEY ARE ' ' SITTING IN AN APPELLATE CAPACITY ' ' .   IT IS APPARENT FROM THE PAPERS IN THE CASE THAT THE ORDER REQUESTING A PRELIMINARY RULING WAS MADE IN THE COURSE OF PROCEEDINGS AT FIRST INSTANCE ON AN ACTION BROUGHT PURSUANT TO ARTICLE 645 OF THE ITALIAN CODE OF CIVIL PROCEDURE AGAINST A PAYMENT ORDER MADE UNDER THE SUMMARY PROCEDURE PROVIDED FOR IN ARTICLES 633 ET SEQ . OF THE CODE OF CIVIL PROCEDURE . IT MUST THEREFORE BE STATED THAT THE ORDER OF THE NATIONAL COURT WAS NOT MADE IN THE CIRCUMSTANCES PROVIDED FOR IN ARTICLE 2 ( 2 ) OF THE PROTOCOL ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 .   CONSEQUENTLY , IT IS CLEAR THAT THE COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF THE REFERENCE FOR A PRELIMINARY RULING WHICH MUST THEREFORE BE DECLARED INADMISSIBLE WITHIN THE MEANING OF ARTICLE 92 ( 1 ) TOGETHER WITH ARTICLE 103 ( 2 ) OF THE RULES OF PROCEDURE .    

Operative part

ON THOSE GROUNDS , THE COURT  HEREBY ORDERS AS FOLLOWS :   THE REQUEST FOR A PRELIMINARY RULING MADE BY THE PRESIDENT OF THE TRIBUNALE DI VARESE BY ORDER OF 23 APRIL 1983 IS INADMISSIBLE .