CELEX: 61977CC0009
Language: en
Date: 1977-06-16 00:00:00
Title: Opinion of Mr Advocate General Mayras delivered on 16 June 1977. # Bavaria Fluggesellschaft Schwabe & Co. KG and Germanair Bedarfsluftfahrt GmbH & Co. KG v Eurocontrol. # References for a preliminary ruling: Bundesgerichtshof - Germany. # Joined cases 9 and 10-77.

OPINION OF MR ADVOCATE-GENERAL MAYRAS
      DELIVERED ON 16 JUNE 1977 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      On 14 October 1976 in Case 29/76 referred to the Court for a preliminary ruling by the Oberlandesgericht Düsseldorf in an action between Eurocontrol and Lufttransportunternehmen GmbH & Co. KG in relation to the recovery of route charges claimed by Eurocontrol the Court considered ([1976] ECR at p. 1551) that the words ‘in civil and commercial matters’ used in Article 1 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters did not depend on the classification given by the court which delivered the judgment to be enforced but must be regarded as an independent concept.
      On this basis the Court decided that ‘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’. ‘Such is the case’, the Court added, ‘in a dispute which, like that between the parties to the main action, concerns 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, in particular where such use is obligatory and exclusive’(ibid, at p. 1551). ‘This applies in particular’, the judgment continues, ‘where the rate of charges, the methods of calculation and the procedures for collection are fixed unilaterally in relation to the users, as is the position in the present case where the body in question 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’.
      The Court's judgment, which appears to me to be an illustration of the theory of administrative contracts containing clauses derogating from the general law thus necessarily rejected the view of the Tribunal de Commerce, Brussels, before which the case had been brought by Eurocontrol and which, to confirm its jurisdiction, had decided on 7 March 1974 that the charges claimed were not akin to taxes and were of a commercial nature.
      At the same time however the Court clearly rejected the view of the German Bundesgerichtshof (Federal Court of Justice) in a judgment given on 26 November 1975 between the same parties, Eurocontrol and LTU, which was limited to referring the case back to the Oberlandesgericht Düsseldorf and in consequence of which the Oberlandesgericht referred to the Court of Justice on 16 February 1976 the question on which the Court ruled in its judgment of 14 October 1976.
      The Bundesgerichtshof took the view that its decision did not involve an interpretation of the Convention of 1968 and it did not therefore regard itself as bound to bring the matter before this Court in accordance with Article 3 (1) of the Protocol on the Interpretation by the Court of Justice of the Convention of 27 September 1968, which, however, had entered into force on 1 September 1975. The Bundesgerichtshof rules that as regards the question whether a foreign judgment had been given in a ‘civil and commercial matter’ the classification given by the court which had given the judgment to be enforced was decisive for the purposes of the enforcement procedure. This judgment of the Bundesgerichtshof was upheld by the Bundesverfassungsgericht (Federal Constitutional Court) in an order of 23 June 1976.
      Apparently the Bundesgerichtshof has changed its opinion since it now considers that the judgment which it is now required to give in two parallel cases which are in every respect identical save for the names of the airlines and the amount of the charges claimed from them by Eurocontrol, does in fact require an interpretation of the Convention of 1968. It therefore asks the Court whether under Article 56 of the Convention the treaty and conventions referred to in Article 55 continue to have effect in relation to judgments which do not fall under the second paragraph of Article 1 of the Convention but are excluded from the scope of the Convention as a result of the first paragraph of Article 1 thereof as interpreted by the Court's judgment of 14 October 1976.
      As a result of this question the ‘dialogue’ which began between the Bundesgerichtshof in Karlsruhe and the Oberlandesgericht Dusseldorf, which rightly made use of the unlimited right which the Court of Justice recognizes, as being vested in national courts, to bring the matter before this Court (Case 166/73, Rheinmuhlen [1974] ECR 33 and Case 146/73, Rheinmuhlen [1974] ECR 139), is now directly between the Bundesgerichtshof and this Court. This indicates the importance of the judgment which the Court is called upon to give and which must provide the basis of the decision in the three cases between Eurocontrol and three German companies: apart from the two cases which have given rise to the present reference by the Bundesgericht, the judgment of this Court is awaited with interest by the Oberlandesgericht Düsseldorf which has indicated that it has still not given judgment ‘on the basis of’ the Court's judgment of 14 October 1976 and that it was waiting to do so until a ruling had been given in the parallel proceedings with which we are concerned today.
      Let me add that the judgment in the present case will necessarily have an effect upon the result of certain cases brought before the administrative courts of the Federal Republic of Germany: there is the action brought by LTU before the Oberverwaltungsgericht (Higher Administrative Court) Nord-rheinwestfalen, claiming that the charges made by Eurocontrol are not due, and the appeal brought by LTU before the Bundesverwaltungsgericht (Federal Administrative Court) against the decision of the aforementioned Oberverwaltungsgericht declaring the action for annulment brought by LTU inadmissible in so far as the accounts of charges made by Eurocontrol were not actionable administrative measures within the meaning of German law.
      
               1.
            
            
               In the case of a preliminary ruling the Court always refuses on principle to consider the relevance of the question submitted by the national court or whether it is necessary to enable it to give judgment in the case with which it is concerned. However the Court does endeavour to set out in the answer the factors which seem likely to be ‘helpful’ in deciding the case. In this spirit let me observe that it is not a question in the abstract whether all the agreements referred to in Article 55 of the Convention of 1968 continue to have effect in respect of judgments to be given in relation to all matters which are expressly excluded by the second paragraph of Article 1 (status of persons, bankruptcy, social security and arbitration).
               Although the Bundesgerichtshof does not mention in its order requesting a preliminary ruling the Convention between the Federal Republic of Germany and the Kingdom of Belgium on the Mutual Recognition and Enforcement of Judgments, Arbitration Awards and Authentic Instruments in Civil and Commercial Matters, signed at Bonn on 30 June 1958, it is obvious that when it speaks of ‘the treaty and conventions referred to in Article 55’ it is thinking in the first place of that bilateral German-Belgian agreement and since the judgment in question cannot be governed by the Convention of 1968 according to your judgment in the LTU case, it is necessary for it to know whether certain judgments (with the exception naturally of those referred to in the second paragraph of Article 1) while not being of a civil or commercial nature within the meaning of the Convention of 1968, could be so within the meaning of the bilateral convention of 1958. The only matter therefore which it is necessary for the Bundesgerichtshof to know is whether the Convention of 1968 has replaced for Belgium and the Federal Republic of Germany the bilateral convention signed between the two countries in 1958 in the very special case of judgments relating to the recovery of charges by Eurocontrol or whether there remain in some way ‘residual’ civil and commercial matters which might come under the bilateral convention.
            
         
               2.
            
            
               This question must therefore obviously be related to the answer given by the Court in Case 29/76.
               I think that the Court will wish first of all to confirm this case-law.
               Several commentators have criticized this judgment, given contrary to the opinion of Mr Advocate General Reischl, but for the present I shall assume that it is to stand. Moreover having regard to the ‘guidelines’ indicated by your judgment, the working party entrusted with making the necessary adjustments for the accession of the new Member States to the Convention of 1968 has laid down that at present revenue, customs and administrative matters are not civil and commercial matters within the meaning of the Convention.
            
         
               3.
            
            
               The Bundesgerichtshof assumes that there are judgments which, while not falling within the classes expressly excluded by the second paragraph of Article 1 of the Convention and not relating to civil and commercial matters within the meaning of this expression in the Court's case-law, might continue to be civil and commercial matters within the meaning of the bilateral convention; the question put to the Court necessarily calls, it seems to me, for a definition of the respective fields of application of the Convention of 1968 and of the bilateral convention of 1958 having regard to the charges claimed by Eurocontrol.
               Article 55 of the Brussels Convention states “this Convention shall, for the States which are parties to it, supersede the following conventions concluded between two or more of them”, namely in particular the German-Belgian Convention of 1958. However this supersession is “subject to the provisions of the second paragraph of Article 54 and of Article 56”.
               Article 56 states that “the treaty and the conventions referred to in Article 55 shall continue to have effect in relation to matters to which this Convention does not apply”.
               Judgments given before the entry into force of the Convention, that is to say before 1 February 1973, even if given in matters to which the Convention applies, are not affected by the provisions of the Convention of 1968 (second paragraph of Article 56).
               Judgments given after the date of entry into force of the Convention of 1968 in proceedings instituted before that date “shall be recognized and enforced in accordance with the provisions of Title III [of the Convention of 1968] if jurisdiction was founded upon rules which accorded with those provided for either in Title II of this Convention or in a convention concluded between the State in which the judgment was given and the State in which recognition or enforcement is sought and which was in force when the proceedings were instituted” (second paragraph of Article 54). It is also necessary, of course, that the proceedings should relate to “civil and commercial matters” within the meaning of the Convention of 1968 but this is so obvious that the article does not even say so expressly.
               In other words, to know whether the European Convention has “superseded” the bilateral convention or whether on the other hand the latter “continues to have effect” it is necessary to ascertain whether the “matters” to which the two conventions respectively apply are the same, that is, whether the “civil and commercial matters” referred to in Article 1 of the Convention of 1968 are the same as the “civil and commercial matters” referred to in Article 3 of the bilateral convention.
            
         
               4.
            
            
               In general the provisions of the bilateral agreements cannot be interpreted by the Court of Justice save under Article 182 of the Treaty and the jurisdiction of the Court is limited to the Community provisions (Article 164). This rule which the Court has developed in relation to regulations concerning social security for migrant workers applies likewise, it seems to me, to the interpretation of the Convention of 1968. The Court had a similar problem in the sphere of social security where the Community regulations also have a provision to the effect that “Save as otherwise expressly stated herein, the provisions of this regulation shall … replace the provisions of: (a) the social security conventions concluded between two or more Member States …” (Article 5 of Regulation No 3) and ‘The provisions of this regulation notwithstanding, the following shall continue to apply: … (e) such other provisions of social security conventions as are listed in Annex D to this regulation’ (Article 6 of Regulation No 3).
               It is clear from these provisions, as the Court decided in its judgment of 7 June 1973 in Case 82/72, Walder ([1973] ECR at p. 604), that the principle that the provisions of social security conventions concluded between Member States are replaced by Regulation No 3 is mandatory in nature and does not allow of exceptions save for the cases expressly laid down by the regulation. Not even the fact that social security conventions concluded between Member States are more advantageous to persons covered by Regulation No 3 than the regulation itself is sufficient to justify an exception to this principle unless such conventions are expressly preserved by the regulation. This fact to which the Court refused to attach crucial significance in relation to social security should not be decisive in the sphere covered by the Convention either if, as I said in my opinion in Case 42/76, De Wolf ([1976] ECR at p. 1774), the conclusion of the Convention between the Contracting States connotes a priori, at least so it may be supposed, the organization of a system which is on the whole better than the previous bilateral or multilateral systems.
               A confirmation of this supposition is furnished by the fact that, unless I am mistaken, Eurocontrol has always relied solely on the provisions of the Convention of 1968 and not on those of the bilateral convention to obtain enforcement of the decisions given in its favour in Belgium. In brief, Eurocontrol, which had begun legal proceedings before the entry into force of the Convention of 1968 to recover its charges, once armed with the judgment of the Tribunal de Commerce of Brussels given after the said entry into force, has attempted at first to enforce it in the Federal Republic of Germany by alleging that the judgment was given in accordance with the jurisdiction provided for by the bilateral convention and relying on the second paragraph of Article 54 of the Convention of 1968; now it prefers to fall back on the Convention of 1958 since the Court has decided that the recovery of such debts is not a civil and commercial matter within the meaning of the Brussels Convention.
               As I said in my opinion in the De Wolf case, it does not appear to me possible to apply the Convention of 1968 ‘a la carte’; the balance achieved by the Convention would be upset if a party could, at his own convenience, use either the Community system laid down by the Convention or the traditional treaty rights under bilateral conventions.
            
         
               5.
            
            
               It nevertheless appears to me necessary to carry the analysis a little further and to refer, at least indirectly, to the provisions of the bilateral convention of 1958 to give a helpful answer to the national court.
               It is moreover necessary to interpret the bilateral conventions, at least in certain respects, for the purpose of the interpretation and application of the Convention of 1968. The first paragraph of Article 54, as I have said, provides that the provisions shall apply only to legal proceedings instituted after the entry into force of the Convention. Nevertheless the second paragraph thereof provides, in relation to enforcement, that the fact that enforcement proceedings have been instituted before the entry into force of the Convention is of no consequence provided that the court of the State in which judgment was given delivered judgment after such date ‘if jurisdiction was founded upon rules which accorded with those provided for either in Title II of this Convention or in a convention concluded between the State in which the judgment was given and the State in which recognition or enforcement is sought and which was in force when the proceedings were instituted’.
               In Case 29/76 the Commission and Mr Advocate General Reischl following it relied on the existence of the German-Belgian Convention of 30 June 1958 to claim jurisdiction ratione loci for the Tribunal de Commerce of Brussels (court of the State in which the judgment was given) in accordance with the Convention of 1958, which obviously implies an interpretation of that convention. The Court itself by implication acted in the same manner, for it would not have answered the question referred to it if it had not taken the view that the rules on jurisdiction under the convention of 1958 were applicable ratione temporis in the case in question.
               Following this precedent I think that with regard to the recovery of the charges of Eurocontrol the Convention of 1968, as interpreted by you, has replaced, in relations between the Federal Republic of Germany and Belgium, the bilateral convention signed in 1958 between those two countries.
               This is so not only because the Brussels Convention has been signed between these two countries, the signatories to the convention of 1958, not only because the words used in this respect by the two instruments are identical, but above all because the second paragraph of Article 54 postulates the equal standing of the rules of jurisdiction provided for by the bilateral convention with those provided for by Title II of the Brussels Convention, since this is the justification for enforcement in conformity with the provisions of the Brussels Convention of judgments given as a result of proceedings begun even before the Convention entered into force.
            
         
               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.
            
         My opinion is that the Court should rule that Article 56 of the Brussels Convention of 1968 must be interpreted as meaning that the bilateral convention listed fifthly in Article 55 of the Brussels Convention continues to have effect in relation to the enforcement of judgments including such as are given after the entry into force of the Convention as a result of actions begun before such date, provided that that application does not prejudice the classification of ‘civil and commercial matter’ within the meaning of the first paragraph of Article 1 of the Convention.
      (
            1
         )	Translated from the French.