Horst Ludwig Martin Hoffmann v Adelheid Krieg.
Date: 1988-02-04
10 IN THAT REGARD IT SHOULD BE RECALLED THAT THE CONVENTION "SEEKS TO FACILITATE AS FAR AS POSSIBLE THE FREE MOVEMENT OF JUDGMENTS, AND SHOULD BE INTERPRETED IN THIS SPIRIT ". RECOGNITION MUST THEREFORE "HAVE THE RESULT OF CONFERRING ON JUDGMENTS THE AUTHORITY AND EFFECTIVENESS ACCORDED TO THEM IN THE STATE IN WHICH THEY WERE GIVEN" ( JENARD REPORT ON THE CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS, OFFICIAL JOURNAL 1979, C 59, PP . 42 AND 43 ).
11 IT FOLLOWS THAT THE ANSWER TO BE GIVEN TO THE NATIONAL COURT' S FIRST QUESTION IS THAT A FOREIGN JUDGMENT WHICH HAS BEEN RECOGNIZED BY VIRTUE OF ARTICLE 26 OF THE CONVENTION MUST IN PRINCIPLE HAVE THE SAME EFFECTS IN THE STATE IN WHICH ENFORCEMENT IS SOUGHT AS IT DOES IN THE STATE IN WHICH JUDGMENT WAS GIVEN .
21 AS FAR AS THE SECOND PART OF THE THIRD QUESTION IS CONCERNED, IT SHOULD BE NOTED THAT, ACCORDING TO THE SCHEME OF THE CONVENTION, USE OF THE PUBLIC-POLICY CLAUSE, WHICH "OUGHT TO OPERATE ONLY IN EXCEPTIONAL CASES" ( JENARD REPORT, CITED ABOVE, AT P . 44 ) IS IN ANY EVENT PRECLUDED WHEN, AS HERE, THE ISSUE IS WHETHER A FOREIGN JUDGMENT IS COMPATIBLE WITH A NATIONAL JUDGMENT; THE ISSUE MUST BE RESOLVED ON THE BASIS OF THE SPECIFIC PROVISION UNDER ARTICLE 27 ( 3 ), WHICH ENVISAGES CASES IN WHICH THE FOREIGN JUDGMENT IS IRRECONCILABLE WITH A JUDGMENT GIVEN IN A DISPUTE BETWEEN THE SAME PARTIES IN THE STATE IN WHICH ENFORCEMENT IS SOUGHT .
22 IN ORDER TO ASCERTAIN WHETHER THE TWO JUDGMENTS ARE IRRECONCILABLE WITHIN THE MEANING OF ARTICLE 27 ( 3 ), IT SHOULD BE EXAMINED WHETHER THEY ENTAIL LEGAL CONSEQUENCES THAT ARE MUTUALLY EXCLUSIVE .
25 THE ANSWER TO BE GIVEN TO THE THIRD QUESTION SUBMITTED BY THE NATIONAL COURT IS THEREFORE THAT A FOREIGN JUDGMENT ORDERING A PERSON TO MAKE MAINTENANCE PAYMENTS TO HIS SPOUSE BY VIRTUE OF HIS CONJUGAL OBLIGATIONS TO SUPPORT HER IS IRRECONCILABLE WITHIN THE MEANING OF ARTICLE 27 ( 3 ) OF THE CONVENTION WITH A NATIONAL JUDGMENT PRONOUNCING THE DIVORCE OF THE SPOUSES .
27 IN ANSWERING THOSE QUESTIONS IT SHOULD FIRST BE POINTED OUT THAT, IN ORDER TO LIMIT THE REQUIREMENTS TO WHICH THE ENFORCEMENT OF A JUDGMENT DELIVERED IN ONE CONTRACTING STATE MAY BE SUBJECTED IN ANOTHER CONTRACTING STATE, THE CONVENTION LAYS DOWN A VERY SIMPLE PROCEDURE FOR THE ISSUE OF THE ENFORCEMENT ORDER, WHICH MAY BE WITHHELD ONLY ON THE GROUNDS EXHAUSTIVELY SET OUT IN ARTICLES 27 AND 28 . HOWEVER, THE CONVENTION 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 EXECUTION IS SOUGHT ( JUDGMENT OF 2 JULY 1985 IN CASE 148/84 DEUTSCHE GENOSSENSCHAFTSBANK V BRASSERIE DU PECHEUR (( 1985 )) ECR 1981 ).
29 HOWEVER, THE APPLICATION, FOR THE PURPOSES OF THE EXECUTION OF A JUDGMENT, OF THE PROCEDURAL RULES OF THE STATE IN WHICH ENFORCEMENT IS SOUGHT MAY NOT IMPAIR THE EFFECTIVENESS OF THE SCHEME OF THE CONVENTION AS REGARDS ENFORCEMENT ORDERS .
30 IT FOLLOWS THAT THE LEGAL REMEDIES AVAILABLE UNDER NATIONAL LAW MUST BE PRECLUDED WHEN AN APPEAL AGAINST THE EXECUTION OF A FOREIGN JUDGMENT FOR WHICH AN ENFORCEMENT ORDER HAS BEEN ISSUED IS LODGED BY THE SAME PERSON WHO COULD HAVE APPEALED AGAINST THE ENFORCEMENT ORDER AND IS BASED ON AN ARGUMENT WHICH COULD HAVE BEEN RAISED IN SUCH AN APPEAL . IN THOSE CIRCUMSTANCES, TO CHALLENGE THE EXECUTION WOULD BE TANTAMOUNT TO AGAIN CALLING IN QUESTION THE ENFORCEMENT ORDER AFTER THE EXPIRY OF THE STRICT TIME-LIMIT LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 36 OF THE CONVENTION, AND WOULD THEREBY RENDER THAT PROVISION INEFFECTIVE .
31 IN VIEW OF THE MANDATORY NATURE OF THE TIME-LIMIT LAID DOWN BY ARTICLE 36 OF THE CONVENTION, THE NATIONAL COURT MUST ENSURE THAT IT IS OBSERVED . IT SHOULD THEREFORE OF ITS OWN MOTION DISMISS AS INADMISSIBLE AN APPEAL LODGED PURSUANT TO NATIONAL LAW WHEN THAT APPEAL HAS THE EFFECT OF CIRCUMVENTING THAT TIME-LIMIT .