C-42/76

JUDGMENT OF THE COURT 30 NOVEMBER 1976 1

Jozef de Wolf v Harry Cox B.V. (preliminary ruling requested by thé Hoge Raad of the Netherlands)

Case 42/76

Summary

Convention of 27 September 1968 — Judgment obtained in a Member State — Enforcement in another Contracting State possible by virtue of Article 31 of the Convention — Application concerning the same subject-matter and between the same parties brought before a court of that State — Prohibition — Costs of procedure (Convention of 27 September 1968, Art. 31)

The provisions of the Convention on for a judgment against the other party in Jurisdiction and the Enforcement of the same terms as the judgment delivered Judgments in Civil and Commercial in the first State. The fact that there may Matters of 27 September 1968 prevent a be occasions on which, according to the party who has obtained a judgment in his national law applicable, the procedure set favour in a Contracting State, being a out in Articles 31 et seq. of the judgment for which an order for Convention may be found to be more enforcement under Article 31 of the expensive than bringing fresh Convention may issue in another proceedings on the substance of the case Contracting State, from making an does not invalidate these considerations. application to a court in that other State

on the interpretation of the said Convention, and in particular of Article 31 thereof.

THE COURT

composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

First paragraph of Article 26 2. A — On 7 May 1976, the Hoge Raad decided to submit the following question A judgment given in a Contracting State to the Court: shall be recognized in the other Contracting States without any special Does Article 31 of the Convention ..., procedure being required. by itself or in conjunction with other provisions of that Convention, prevent a Article 31 plaintiff who has obtained a judgment in his favour in a Contracting State, being a A judgment given in a Contracting State judgment for which an order for and enforceable in that State shall be enforcement within the meaning of enforced in another Contracting State Article 31 of the Convention may issue when, on the application of an interested in another Contracting State, from party, the order for its enforcement has making an application to a court in that been issued there. other State, in accordance with Article 26 of the Convention, for a judgment In particular, the Kantonrechter held against the other party on the same terms that: as the judgment delivered in the first — it appears from those provisions that State, instead of applying for the issue of the abovementioned Belgian such an order for enforcement in that judgment must be recognized in the other State, assuming, of course, that Netherlands 'without any special under the provisions of the Convention procedure being required', within the that court has jurisdiction to hear the meaning of the said Article 26; application? — however, by virtue of the relevant Netherlands legislation, an In the statement of reasons for this application for the issue of an order for enforcement must be made under decision, it is stated that the relevance of the procedure laid down by that the question referred 'becomes legislation. particularly apparent in cases of small That procedure, in the present case, personal claims. In the Netherlands, would cost more (at least Fl 340) than these claims may be brought before the Kantonrechter without the assistance of lodging a second application concerning the same subject-matter. an advocate when they do not exceed the Therefore it is in the interests of the sum of Fl 1 500, and no appeal is parties that the second course be possible when they do not exceed the sum of Fl 500. These factors do not followed. apply where the procedure for the issue of an order for enforcement for which The Attorney-General to the Hoge Raad brought an appeal against the judgment the Convention provides must be followed.' of the Kantonrechter of Boxmeer before the Hoge Raad on the ground that the said judgment infringes Article 31 of the B — The order making the reference Convention, if not the Convention as a was entered in the Court Register on 14 whole. In fact, by virtue of the May 1976.

1. The Government of the Federal makes provision is exclusive can be Republic of Germany states, inter alia, based on the following considerations in the following: particular: 1. If this proposition were accepted, A — The principal purpose of Articles foreign orders for enforcement would 31 et seq. of the Convention is to ensure be uniformly enforced throughout the that the decisions of the courts of other field of application of the Convention. Contracting States may be declared Thus the latter would be applicable to enfordeable by means of a simpole and all aspects of proceedings to enforce a effective procedure and in the manner foreign judgment, for example it most favourable to the person seeking would be applicable as regards the enforcement. protection that the Convention gives to a debtor against a definitive It follows from the first paragraph of enforcement of a foreign judgment Article 33 of the Convention which before the latter has itself become res provides that 'the procedure for making judicata. The Convention would also the application', that is to say the apply as regards the limits that it sets application for the issue of an order for on the enforcement of foreign enforcement (Article 31), 'shall be judgments imposing fines, and would governed by the law of the State in apply in so far as it enables foreign which enforcement is sought', that the orders for enforcement to be partially Convention has left it to national law to enforced, lays down a common set of settle the questions which it has not dealt reasons for which recognition of a with itself. This explains why the foreign judgment may be refused and, procedure for enforcement of a foreign finally, enables the debtor to appeal judgment has not been rendered equally against the decision to issue the order simple by all the Contracting States, for the enforcement of the foreign particularly as regards the costs. Thus, for judgment. example the German law in 2. The procedure for enforcement is implementation of the Convention simplified and accelerated, for enables the applicant to bring creditors do not have to enquire proceedings without the assistance of an whether any legal remedy exists other

than the procedure laid down by the the harmonization intended by the Convention. authors of the convention had 3. Contrary to other comparable absolute priority. Such is not the case international instruments, the here, for the principal objective of the Convention does not contain any convention is 'the simplification of provisions expressly enabling the formalities governing the reciprocal creditor to sue any such other legal recognition and enforcement of remedy. judgments of courts or tribunals' 4. In any case it is the duty of each (Article 220 of the EEC Treaty). Contracting State to ensure that the Therefore, where there exists a procedure under Article 31 is always national procedure which costs less the most simple, the least burdensome than the procedure under Article 31, and the most effective. the Contracting States have no interest in imposing the latter on the (b) In support of the proposition that interested parties. To leave national the Convention does not prevent the law free to complete the rules of the creditor from bringing a new action Convention in accordance with the under national law, as has happened in spirit of the latter in certain this case, the following arguments, circumstances not envisaged by its amongst others, may be advanced: authors makes it possible to achieve

. . be sued in procedure laid down by the the courts of that State'. Convention in order to obtain Moreover, in any event, Article 21 of recognition of the foreign judgment. the Convention prevents a new main Therefore it is permissible for the action from being brought before the national legislature to offer the said procedure commenced in the first party other legal remedies leading to State has closed with a judgment the same result. which has the force of res judicata. 2. In general, an international The debtor is thus sufficiently convention should not necessarily be protected. interpreted as meaning that the Finally, even within the context of a interested parties are bound to base second main action, there is nothing their claims on that convention alone to prevent the general rules of the and not on any other legal basis, even Convention and the provisions thereof a more favourable one. To hold relating to the recognition of foreign otherwise would only be acceptable if decisions from being applied.

C — In reality, the answer to be given be brought in that State on the basis of to the Hoge Raad depends on whether the judgment of the foreign court, as an Article 220 of the Treaty and the exception and despite the existence of Convention looked at as a whole require that judgment. the Member States to organize the procedure under Article 31 of the 2. The Commission puts forward inter Convention so that it is the simplest, the alia the following considerations: most effective and the least burdensome. If there is no such obligation, then the It is an underlying principle of the conflict between the arguments Convention that it applies directly, and respectively put forward in favour of the this is the view taken by its principal proposition that the said procedure is of commentators. It seems therefore that it an exclusive nature and in favour of the was only because of the difficulties pluralist proposition results in a decision inherent in its translation that the word in favour of the latter. That proposition 'directly' ('d'office') was deleted from the does not seriously jeopardize the text of Article 1 at the request of the uniformity of the procedure for German delegation. enforcement of foreign judgments within the Community for it is only in rare This principle also governs the cases that it is possible to bring a new interpretation of Article 31. One cannot main action. Moreover the proposition is draw the contrary conclusion from the in accordance with the fundamental fact that according to the Dutch version objectives of the Convention. In of that provision 'A judgment ... may be particular, allowing the procedure laid enforceable ...'. These words only mean down by Netherlands law and chosen by that, as is indeed obvious, the interested De Wolf has advantages for interested party is free to have a judgment parties in other Contracting States in previously obtained enforced or not to do disputes involving very small sums. so. Moreover the provisions concerning the procedure for enforcement laid down Therefore the answer to the question of in the second part of Article 31 and in the Hoge Raad should be as follows: the provisions which follow it do not appear to be optional: enforcement of The fact that under Article 31 of the the judgments is subject to the condition [Convention] an order for the that the order for enforcement has been enforcement of a decision emanating issued (Article 31). Article 32 et seq. lay from one Contracting State may be down the procedure which must be requested in another Contracting State followed in order to obtain this order, does not prevent a new action etc.

the Convention, by using recognition which it lays down were not to be 'not as a means of enforcing a judgment considered as exclusive is supported by without going throught the courts, but as Article 36 of the Convention which a stage in the procedure for the provides that the party against whom enforcement of a judgment delivered enforcement is sought may appeal abroad'. against the decision authorizing enforcement. This rule would be It is true that the Convention does not purposeless if procedures other than that prohibit a new judgment from being laid down by the Convention were obtained, but even contains rules accepted. concerning lis pendens and related actions (Articles 21 to 23). However as The contrary view, put forward by the regards obtaining the enforcement of a German Government, conflicts with the judgment obtained in another following considerations: Contracting State, Article 31 et seq. ate of — It seems to give the EEC Treaty, and exclusive application. in particular Article 220 thereof, a higher status than the Convention, For these reasons the Commission is of whereas in reality these two the opinion that the answer which must instruments are of equal legal status. be given to the question of the Hoge — The argument based on the saving in Raad is as follows: costs which might result from accepting other procedures is not Article 31 et seq. of the [Convention] relevant. As regards more particularly prohibit an applicant who has obtained a the Netherlands law adopted in judgment in his favour in a Contracting implementation of the Convention, State, being a decision in respect of that law provides that the debtor shall which an order for enforcement within bear the costs of the procedure, the meaning of Article 31 of the including the costs of the advocate. Convention may issue in another Moreover Article 44 of the Contracting State, from making an Convention provides 'An applicant application to a court in that other State, who has been granted legal aid in the in accordance with Article 26 of the State in which the judgment was Convention, for a judgment against the given shall automatically also qualify other party in the same terms as the for legal aid in the procedures judgment delivered in the first State, provided for in Articles 32 to 35'. instead of applying for the issue of an order for enforcement in that other State. The Kantonrechter of Boxmeer was in breach of Article 26 of the Convention During the oral procedure, which took because, contrary to the requirement laid place on 14 October 1976, the down in that provision, he did not Commission of the European Com­ 'recognize' the judgment of the juge de munities, represented by H. Bronkhorst, paix at Turnhout, but himself gave a member of its Legal Service, developed judgment in a case which had already as follows the arguments which it put been decided.

4 In so doing, the Dutch court took the view, inter alia, on the one hand, that it was required to recognize the Belgian judgment under Article 26 of the Convention but that, on the other, under the legislation of the Netherlands, the procedure chosen by the applicant was less expensive for the parties than the procedure under Articles 31 et seq. of the Convention would have been. Under the latter procedure an application for an order for the enforcement of the judgment delivered by the Belgian court would have been brought before the President of the Arrondissementrechtbank which had jurisdiction.

5 The Attorney-General of the Hoge Raad brought an appeal against the judgment of the Kantonrechter before the Hoge Raad on the ground that the Kantonrechter ought to have declared the application inadmissible, because the procedure under Article 31 of the Convention is the only means available to the applicant for the purpose of enforcing the judgment of the Belgian court.

6 The Hoge Raad is asking the Court, in substance, to rule whether the Convention prevents a plaintiff who has obtained a judgment in his favour in

DE WOLF v COX

a Contracting State, being a judgment for which an order for enforcement under Article 31 of the Convention may issue in another Contracting State, from making an application to a court in that other State for a judgment against the other party in the same terms as the judgment delivered in the first State.

7 The first paragraph of Article 26 of the Convention provides: 'A judgment given in a Contracting State shall be recognized in the other Contracting States without any special procedure being required'.

JUDGMENT OF 30. 11. 1976 — CASE 42/76

14 The fact that there may be occasions on which, according to the national law applicable, the procedure set out in Articles 31 et seq. of the Convention may be found to be more expensive than bringing fresh proceedings on the substance of the case does not invalidate these considerations.

15 In this respect, it must be observed that the Convention, which, in the words of the preamble thereto, is intended 'to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals', ought to induce the Contracting States to ensure that the costs of the procedure described in the Convention are fixed so as to accord with that concern for simplification.

16 The question raised by the Hoge Raad of the Netherlands should therefore be answered in the affirmative.

Costs

17 The costs incurred by the Government of the Federal Republic of Germany and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

may issue in another Contracting State, from making an application to a court in that other State for a judgment against the other party in the same terms as the judgment delivered in the first State.

Kutscher Donner Pescatore

Mertens de Wilmars Sarensen Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 30 November 1976.

A. Van Houtte H. Kutscher

Registrar President

1 — Translated from the French.