Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams.
Date: 2009-04-28
33. It must be observed at the outset that the Act of Accession of a new Member State is based essentially on the general principle that the provisions of Community law apply ab initio  and in toto  to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions (see, to that effect, Case 258/81 Metallurgiki Halyps  v Commission [1982] ECR 4261, paragraph 8).
35. However, as the Advocate General observed, in point 35 of her Opinion, provisions in an Act of Accession which permit exceptions to or derogations from rules laid down by the EC Treaty must be interpreted restrictively with reference to the Treaty provisions in question and must be limited to what is absolutely necessary in order to attain its objective (see, by analogy, Case 231/78 Commission  v United Kingdom  [1979] ECR 1447, paragraph 13; Case 77/82 Peskeloglou  [1983] ECR 1085, paragraph 12; Case 11/82 Piraiki-Patraiki and Others  v Commission  [1985] ECR 207, paragraph 26; Case C‑3/87 Agegate [1989] ECR 4459, paragraph 39, and Case C-233/97 KappAhl  [1998] ECR I‑8069, paragraph 18).
38. The fact that those judgments concern land situated in the northern area does not preclude the interpretation referred to in the preceding paragraph since, first, it does not nullify the obligation to apply Regulation No 44/2001 in the Government-controlled area and, second, it does not mean that that regulation must thereby be applied in the northern area (see, by analogy, Case C-281/02 Owusu [2005] ECR I-1383, paragraph 31).
41. In that connection, it is to be remembered that, in order to ensure, as far as possible, that the rights and obligations which derive from Regulation No 44/2001 for the Member States and the persons to whom it applies are equal and uniform, ‘civil and commercial matters’ should not be interpreted as a mere reference to the internal law of one or other of the States concerned. That concept must be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of the regulation and, second, to the general principles which stem from the corpus of the national legal systems (see Case 29/76 LTU  [1976] ECR 1541, paragraph 3; Case 814/79 Rüffer  [1980] ECR 3807, paragraph 7; Case C-172/91 Sonntag  [1993] ECR I-1963, paragraph 18; Case C‑266/01 Préservatrice foncière TIARD  [2003] ECR I-4867, paragraph 20; Case C‑343/04 ČEZ  [2006] ECR I-4557, paragraph 22, and Case C-292/05 Lechouritou and Others  [2007] ECR I-1519, paragraph 29).
42. The autonomous interpretation of the concept of ‘civil and commercial matters’ results in the exclusion of certain judicial decisions from the scope of Regulation No 44/2001, by reason either of the legal relationships between the parties to the action or of the subject-matter of the action (see LTU , paragraph 4; Rüffer , paragraph 14; Préservatrice foncière TIARD, paragraph 21; ČEZ , paragraph 22, and Lechouritou and Others , paragraph 30).
43. Thus, the Court has held that, although certain actions between a public authority and a person governed by private law may come within the concept, it is otherwise where the public authority is acting in the exercise of its public powers (see LTU , paragraph 4; Rüffer , paragraph 8; Sonntag , paragraph 20; Préservatrice foncière TIARD , paragraph 22; and Lechouritou and Others , paragraph 31).
44. The exercise of public powers by one of the parties to the case, because it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, excludes such a case from civil and commercial matters within the meaning of Article 1(1) of Regulation No 44/2001 (see, to that effect, LTU , paragraph 4; Rüffer , paragraphs 9 and 16; Sonntag , paragraph 22; Préservatrice foncière TIARD , paragraph 30; and Lechouritou and Others , paragraph 34).
45. In the case in the main proceedings, the action is between individuals, and its object is to obtain damages for unlawfully taking possession of land, the delivery up of that land, its restoration to its original state and the cessation of any other unlawful intervention. That action is brought not against conduct or procedures which involve an exercise of public powers by one of the parties to the case, but against acts carried out by individuals.
46. Consequently, the case at issue in the main proceedings must be regarded as concerning ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 44/2001.
The second question
55. As a preliminary point, it should be recalled that Article 34 of Regulation No 44/2001 must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation (see Case C‑414/92 Solo Kleinmotoren  [1994] ECR I-2237, paragraph 20; Case C‑7/98 Krombach  [2000] ECR I-1935, paragraph 21, and Case C-38/98 Renault  [2000] ECR I-2973, paragraph 26). With regard, more specifically, to the public-policy clause in Article 34(1) of the regulation, it may be relied on only in exceptional cases (see Case 145/86 Hoffmann  [1988] ECR 645, paragraph 21; Case C‑78/95 Hendrikman and Feyen  [1996] ECR I-4943, paragraph 23; Krombach , paragraph 21, and Renault , paragraph 26).
56. While the Member States remain in principle free, by virtue of the proviso in Article 34(1) of Regulation No 44/2001, to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter of interpretation of that regulation (see Krombach , paragraph 22, and Renault , paragraph 27).
57. Consequently, while it is not for the Court to define the content of the public policy of a Member State, it is none the less required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from another Member State ( Krombach , paragraph 23, and Renault , paragraph 28).
58. In that connection, it must be observed that, by disallowing any review of a foreign judgment as to its substance, Articles 36 and 45(2) of Regulation No 44/2001 prohibit the court of the State in which enforcement is sought from refusing to recognise or enforce that judgment solely on the ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which enforcement is sought had it been seised of the dispute. Similarly, the court of the State in which enforcement is sought cannot review the accuracy of the findings of law or fact made by the court of the State of origin ( Krombach , paragraph 36, and Renault , paragraph 29).
59. Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 can be envisaged only where recognition or enforcement of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it would infringe a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order (see Krombach , paragraph 37, and Renault , paragraph 30).
60. In that connection, the court of the State in which enforcement is sought cannot, without undermining the aim of Regulation No 44/2001, refuse recognition of a judgment emanating from another Member State solely on the ground that it considers that national or Community law was misapplied in that judgment. On the contrary, it must be considered that, in such cases, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 234 EC, affords a sufficient guarantee to individuals (see Renault , paragraph 33). The public-policy clause would apply in such cases only where that error of law means that the recognition or enforcement of the judgment in the State in which enforcement is sought would be regarded as a manifest breach of an essential rule of law in the legal order of that Member State (see, to that effect, Renault , paragraph 34).
63. Notwithstanding the foregoing considerations, it should be recalled that the Court has consistently held that, in the application of Article 234 EC, it may extract from the wording of the questions formulated by the national court, and having regard to the facts stated by the latter, those elements which concern the interpretation of Community law, for the purpose of enabling that court to resolve the legal problems before it (see Joined Cases C-330/90 and C-331/90 López Brea and Hidalgo Palacios  [1992] ECR I-323, paragraph 5; Case C-224/01 Köbler  [2003] ECR I-10239, paragraph 60; and Case C-346/05 Chateignier  [2006] ECR I‑10951, paragraph 18).
66. Accordingly, the enforceability of the judgment in the Member State of origin is a precondition for its enforcement in the State in which enforcement is sought (see Case C‑267/97 Coursier  [1999] ECR I-2543, paragraph 23). In that connection, although recognition must have the effect, in principle, of conferring on judgments the authority and effectiveness accorded to them in the Member State in which they were given (see Hoffmann , paragraphs 10 and 11), there is however no reason for granting to a judgment, when it is enforced, rights which it does not have in the Member State of origin (see the Jenard Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1979 C 59, p. 48) or effects that a similar judgment given directly in the Member State in which enforcement is sought would not have.
69. In that connection, it must be observed that Regulation No 44/2001 merely regulates the procedure for obtaining an order for the enforcement of foreign enforceable instruments and does not deal with execution itself, which continues to be governed by the domestic law of the court in which enforcement is sought (see Case 148/84 Deutsche Genossenschaftsbank  [1985] ECR 1981, paragraph 18; Case 119/84 Capelloni and Aquilini  [1985] ECR 3147, paragraph 16, and Hoffmann , paragraph 27), unless, for the purposes of the enforcement of a judgment, the application of the procedural rules of the Member State in which enforcement is sought may impair the effectiveness of the scheme laid down by the regulation as regards enforcement orders, by frustrating the principles laid down in that regard, whether expressly or by implication, by the regulation itself (see, to that effect, Capelloni and Aquilini , paragraph 21; Hoffmann , paragraph 29, and Case C‑365/88 Hagen  [1990] ECR I-1845, paragraph 20).
73. In that connection, it is apparent from recitals 16 to 18 in the preamble to Regulation No 44/2001 that the system of appeals for which it provides against the recognition or enforcement of a judgment aims to establish a fair balance between, on the one hand, mutual trust in the administration of justice in the Union, which justifies judgments given in a Member State being, as a rule, recognised and declared enforceable automatically in another Member State and, on the other hand, respect for the rights of the defence, which means that the defendant should, where necessary, be able to appeal in an adversarial procedure against the declaration of enforceability if he considers one of the grounds for non-enforcement to be present.
75. Article 34(2) of Regulation No 44/2001, unlike Article 27(2) of the Convention, does not necessarily require the document which instituted the proceedings to be duly served, but does require that the rights of the defence are effectively respected ( ASML , paragraph 20).