David Charles Hayes and Jeannette Karen Hayes v Kronenberger GmbH.
Date: 1997-03-20
13 It has been consistently held that, whilst, in the absence of Community legislation, it is for the internal legal order of each Member State to lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from Community law, Community law nevertheless imposes limits on that competence (Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 42).  Such legislative provisions may not discriminate against persons to whom Community law gives the right to equal treatment or restrict the fundamental freedoms guaranteed by Community law (Case 186/87 Cowan [1989] ECR 195, paragraph 19).
14 It must be held that a national procedural rule, such as the one described above, is liable to affect the economic activity of traders from other Member States on the market of the State in question.  Although it is, as such, not intended to regulate an activity of a commercial nature, it has the effect of placing such traders in a less advantageous position than nationals of that State as regards access to its courts.  Since Community law guarantees such traders free movement of goods and services in the common market, it is a corollary of those freedoms that they must be able, in order to resolve any disputes arising from their economic activities, to bring actions in the courts of a Member State in the same way as nationals of that State (C-43/95 Data Delecta and Forsberg [1996] ECR I-4661, paragraph 13).
16 It is important to note however that, as the Court held in Joined Cases C-92/92 and C-326/92 Phil Collins and Others [1993] ECR I-5145, paragraph 27, and more recently in Data Delecta and Forsberg, at paragraph 14, national legislative provisions which fall within the scope of application of the Treaty are, by reason of their effects on intra-Community trade in goods and services, necessarily subject to the general principle of non-discrimination laid down by the first paragraph of Article 6 of the Treaty, without there being any need to connect them with the specific provisions of Articles 30, 36, 59 and 66 of the Treaty.
17 It must therefore be held that a rule of domestic civil procedure, such as the one at issue in the main proceedings, falls within the scope of the Treaty within the meaning of the first paragraph of Article 6 and is subject to the general principle of non-discrimination laid down by that article in so far as it has an effect, even though indirect, on trade in goods and services between Member States.  Such an effect is liable to arise in particular where security for costs is required where proceedings are brought to recover payment for the supply of goods (Data Delecta and Forsberg, paragraph 15).
Discrimination within the meaning of the first paragraph of Article 6 of the Treaty
19 A provision such as the one at issue in the main proceedings obviously entails direct discrimination on the basis of nationality.  Under that provision, a Member State does not require its own nationals to furnish security even if they have no assets or residence in that State.
23 Admittedly, some Member States are not yet parties to the Brussels Convention (Republic of Austria, Republic of Finland and Kingdom of Sweden) or the Lugano Convention (Kingdom of Belgium and Hellenic Republic) and, until such time as all Member States have acceded to one or other of those Conventions, enforcement of judgments in civil and commercial matters will not be secured throughout the Community.  As a result, as between some Member States there is a real risk that it will be impossible or, at least, considerably more difficult and more expensive to enforce an order for costs made in a Member State against non-residents (see for the enforcement of judgments in criminal cases, which is not covered by those conventions, Case C-29/95 Pastoors and Trans-Cap [1997] ECR I-0000, paragraph 21).