Préservatrice foncière TIARD SA v Staat der Nederlanden.
Date: 2003-05-15
20.  It is settled case-law that, since Article 1 of the Brussels Convention serves to indicate the area of application of the Convention, it is necessary, in order to ensure, as far as possible, that the rights and obligations which derive from it for the Contracting States and the persons to whom it applies are equal and uniform, that the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the States concerned.   "Civil and commercial matters"   must therefore be regarded as an independent concept to be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the national legal systems as a whole (Case 29/76LTU   [1976] ECR 1541, paragraph 3; Case 133/78   Gourdain   [1979] ECR 733, paragraph 3; Case 814/79   Rüffer   [1980] ECR 3807, paragraph 7; Case C-172/91   Sonntag   [1993] ECR I-1963, paragraph 18, and Case C-271/00   Baten   [2002] ECR I-10489, paragraph 28).
21.  The Court has made it clear that that interpretation results in the exclusion of certain judicial decisions from the scope of the Brussels Convention, owing either to the legal relationships between the parties to the action or to its subject-matter (LTU  , paragraph 4, and   Baten  , paragraph 29).
22.  Thus the Court has held that, although certain judgments in actions between a public authority and a person governed by private law may come within the scope of the Brussels Convention, it is otherwise where the public authority is acting in the exercise of its public powers (LTU  , paragraph 4;   Rüffer  , paragraph 8, and   Baten  , paragraph 30).
23.  In order to apply those principles in a case such as that in the main proceedings, it is therefore necessary to identify the legal relationship between the parties to the dispute and to examine the basis and the detailed rules governing the bringing of the action (see, to that effect,   Baten  , paragraph 31).
30.  In order to answer the first question, it is therefore necessary to examine whether the legal relationship between the Netherlands State and PFA, under the guarantee contract, is characterised by an exercise of public powers on the part of the State to which the debt is owed, in that it entails the exercise of powers going beyond those existing under the rules applicable to relations between private individuals (on that criterion, see   Sonntag  , paragraph 22).
36.  In the light of all these considerations, the answer to the first question must be that the first paragraph of Article 1 of the Brussels Convention must be interpreted as meaning that   "civil and commercial matters"  , within the meaning of the first sentence of that provision, covers a claim by which a contracting State seeks to enforce against a person governed by private law a private-law guarantee contract which was concluded in order to enable a third person to supply a guarantee required and defined by that State, in so far as the legal relationship between the creditor and the guarantor, under the guarantee contract, does not entail the exercise by the State of powers going beyond those existing under the rules applicable to relations between private individuals.
The second question referred for a preliminary ruling
42.  In order to determine whether an action falls within the scope of the Brussels Convention, only the subject-matter of that action must be taken into account. It would be contrary to the principle of legal certainty, which is one of the objectives pursued by that convention, for its applicability to vary according to the existence or otherwise of a preliminary issue, which might be raised at any time by the parties (see, to that effect, Case C-190/89   Rich   [1991] ECR I-3855, paragraphs 26 and 27, and Case C-129/92   Owens Bank   [1994] ECR I-117, paragraph 34).