Volker Sonntag v Hans Waidmann, Elisabeth Waidmann and Stefan Waidmann.
Date: 1993-04-21
16 It follows from the wording of that provision that the Convention also applies to decisions given in civil matters by a criminal court.
18 As the Court has consistently held (see, in particular, Case 29/76 LTU v Eurocontrol [1976] ECR 1541, paragraphs 3 and 4; Case 133/78 Gourdain v Nadler [1979] ECR 733, paragraph 3; and Case 814/79 Netherlands v Rueffer [1980] 3807, paragraphs 7 and 8), the concept of "civil matters" in Article 1 of the Convention must 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 corpus of the national legal systems.
19 Even though it is joined to criminal proceedings, a civil action for compensation for injury to an individual resulting from a criminal offence is civil in nature. In the legal systems of the Contracting States the right to obtain compensation for injury suffered as a result of conduct regarded as culpable in criminal law is generally recognized as being a civil-law right. That, moreover, is the conception underlying Article 5(4) of the Convention.
20 It follows from the judgments in the LTU and Rueffer cases, cited above, that such an action falls outside the scope of the Convention only where the author of the damage against whom it is brought must be regarded as a public authority which acted in the exercise of public powers.
22 Secondly, in the majority of the legal systems of the Member States the conduct of a teacher in a State school, in his function as a person in charge of pupils during a school trip, does not constitute an exercise of public powers, since such conduct does not entail the exercise of any powers going beyond those existing under the rules applicable to relations between private individuals.
24 Fourthly, the Court has already held, although in a different factual and legal context, in Case 66/85 Lawrie-Blum v Land Baden-Wuerttemberg [1986] ECR 2121, paragraph 28 in conjunction with paragraph 24, that a teacher does not exercise public powers even when he awards marks to pupils and participates in the decisions on whether they should move to a higher class. That must be so a fortiori in relation to the duty of a teacher, as a person in charge of pupils, to supervise them during a school trip.
32 Secondly, the Court has found in favour of a narrow interpretation of the concept "judgment given on the appeal" in Article 37(2) of the Convention and has ruled that under the general scheme of the Convention, and in the light of one of its principal objectives, which is to simplify procedures in the State in which enforcement is sought, that provision cannot be extended so as to enable an appeal in cassation to be lodged against a judgment other than that given on the appeal (Case 258/83 Brennero v Wendel [1984] ECR 3971, paragraph 15, and Case C-183/90 Van Dalfsen v van Loon [1991] ECR I-4743, paragraph 19).
33 Finally, the Court made it clear in its judgment in Case 148/84 Deutsche Genossenschaftsbank v Brasserie du Pêcheur [1985] ECR 1981, paragraph 17), that the Convention has established an enforcement procedure which constitutes an autonomous and complete system, including the matter of appeals, and that it follows that Article 36 of the Convention excludes procedures whereby interested third parties may challenge an enforcement order under domestic law.
38 As the Court has consistently held, Article 27(2) is intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised (Case 166/80 Klomps v Michel [1981] ECR 1593, paragraph 9, and Case C-123/91 Minalmet v Brandeis [1992] ECR I-5661, paragraph 18).
39 It follows that non-recognition of a judgment for the reasons set out in Article 27(2) of the Convention is possible only where the defendant was in default of appearance in the original proceedings. Consequently, that provision may not be relied upon where the defendant appeared, at least if he was notified of the elements of the claim and had the opportunity to arrange for his defence.