Mario Reichert, Hans-Heinz Reichert and Ingeborg Kockler v Dresdner Bank AG.
Date: 1992-03-26
15 As the Court held in the judgment in Case 189/87 Kalfelis v Schroeder [1988] ECR 5565, paragraphs 15 and 16, the concept of "matters relating to tort, delict or quasi-delict" serves as a criterion for defining the scope of one of the rules concerning the special jurisdictions available to the plaintiff. Regard being had to the objectives and general scheme of the Convention, it is important that, in order to ensure as far as possible the equality and uniformity of the rights and obligations arising out of the Convention for the Contracting States and the persons concerned, that concept should not be interpreted as a simple reference to the national law of one or other of the States concerned. Accordingly, the concept of "matters relating to tort, delict or quasi-delict" must be regarded as an independent concept which is to be interpreted, for the application of the Convention, principally by reference to the scheme and objectives of the Convention in order to ensure that the latter is given full effect.
16 The Court also held in its abovementioned judgment in Case 189/87 Kalfelis, at paragraph 17, that in order to ensure uniformity in all the Member States, it must be recognized that the concept of "matters relating to tort, delict and quasi-delict" covers all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5(1).
17 In the abovementioned judgment in Case C-115/88 Reichert, at paragraph 12, the Court pointed out that the action paulienne in French law was based on the creditor' s personal claim against the debtor and sought to protect whatever security he might have over the debtor' s estate. If successful, its effect was to render the transaction whereby the debtor had effected a disposition in fraud of the creditor' s rights ineffective as against the creditor alone.
24 It should be pointed out, in the first place, that, as the Court held in its judgment in Case 220/84 AS-Autoteile Service v Malhé [1985] ECR 2267, at paragraph 16, Article 16 of the Convention makes a number of exceptions to the general rule set out in Article 2 of the Convention by granting exclusive jurisdiction to the courts of a Contracting State other than that specified under Article 2 in proceedings which have a particular connection with that other State, on the basis of the location of immovable property, the seat of a company, an entry in a public register or, in the case of paragraph (5), the place where a judgment is to be enforced.
25 In the second place it should be pointed out that Article 16 must not be given a wider interpretation than is required by its objective, since it results in depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, in their being brought before a court which is not that of the domicile of any of them (judgments in Cases 73/77 Sanders v van der Putte [1977] ECR 2383, at paragraphs 17 and 18, and C-115/88 Reichert, cited above, at paragraph 9).
28 As has been stated in paragraph 17 above, an action such as the action paulienne under French law seeks to protect whatever security the creditor may have by requesting the court having jurisdiction to render the transaction whereby the debtor has effected a disposition in fraud of the creditor' s rights ineffective as against the creditor. Although it thus preserves the interests of the creditor with a view in particular to a subsequent enforcement of the obligation, it is not intended to obtain a decision in proceedings relating to "recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments" and does not therefore come within the scope of Article 16(5) of the Convention.
Article 24 of the Convention
32 The Court has already declared in the judgment in Case 143/78 De Cavel v De Cavel [1979] ECR 1055, at paragraph 8, that as provisional or protective measures may serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect. It added, in paragraph 9 of that judgment, that the provisions of Article 24 of the Convention cannot be relied upon to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded therefrom.
33 The Court also pointed out in the judgment in Case 125/79 Denilauler v Couchet Frères [1980] ECR 1553, at paragraphs 15 and 16, that an analysis of the function attributed under the general scheme of the Convention to Article 24 leads to the conclusion that, where such types of measures are concerned, special rules were contemplated so as to take account of the particular care and detailed knowledge of the actual circumstances required by the granting of this type of measure as well as the determination of procedures and conditions intended to guarantee the provisional and protective character of such measures.
34 The expression "provisional, including protective, measures" within the meaning of Article 24 must therefore be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter.