C-9/77

JUDGMENT OF THE COURT 14 JULY 1977 <apnote>1</apnote>

Bavaria Fluggesellschaft Schwabe & Co. KG and Germanair Bedarfsluftfahrt GmbH & Co. KG v Eurocontrol

(preliminary ruling requested by the Bundesgerichtshof)

Joined cases 9 and 10/77

1. Convention of 27 September 1968 — Concepts and legal classifications laid down by the Court — Uniform application in the Member States

2. Convention of 27 September 1968 — Judgments excluded from the scope of the latter — Bilateral agreements — Application — Exclusive jurisdiction of national court

In Joined Cases 9/77 and 10/77

Reference to the Court under Article 3 of the Protocol of 3 June 1971 on the Interpretation by the Court of Justice of the Convention of 27 September

1 — Language of the Case: German.

JUDGMENT OF 14. 7. 1977 — JOINED CASES 9 AND 10/77

1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the VIIIth Senate of the Bundesgerichtshof (Federal Court of Justice) for a preliminary ruling in the action pending before that court between

1. BAVARIA FLUGGESELLSCHAFT SCHWABE & Co., KG, Munich (Case 9/77),

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

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

gives the following

JUDGMENT

Facts and issues

The facts, procedure and written I — Facts and written procedure observations submitted under Article 20 of the Statute of the Court of Justice of 1. By judgments of 7 March 1974 the the EEC may be summarized as follows: Tribunal de Commerce of Brussels

ordered the Bavaria Fluggesellschaft 2. The provisions of the Convention Schwabe & Co. KG, having its registered referred to in this question are as follows: office in Munich, and Germanair Bedarfsluftfahrt GmbH & Co. KG, Article 1 having its registered office in Frankfurt am Main, (hereinafter referred to as This Convention shall apply in civil and 'Bavaria' and 'Germanair") to pay to commercial matters ... Eurocontrol charges due for air traffic control and declared both judgments The Convention shall not apply to: provisionally enforceable. These (1) the status or legal capacity or natural judgments were served on Bavaria and persons, rights in property arising out Germanair and became in Belgium res of a matrimonial relationship, wills judicata after the rights of appeal were and succession; exhausted. (2) bankruptcy, proceedings relating to the winding-up of insolvent com­ Eurocontrol applied to the Landgericht panies or other legal persons, judicial München (Munich Regional Court) and arrangements, compositions and the Landgericht Frankfurt for analogous proceedings; enforcement of the two judgments on (3) social security; the basis of the Convention of 27 (4) arbitration. September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Article 55 Commercial Matters (hereinafter referred to as 'the Brussels Convention'). The 'Subject to the provisions ... of Article Munich court acceded to this application 56, this Convention shall, for the States whilst the Frankfurt court dismissed it. which are parties to it, supersede the following conventions concluded The Oberlandesgericht München between two or more of them: (Munich Higher Regional Court), to which Bavaria appealed, and the Oberlandesgericht Frankfurt, to which The Convention between the Federal Eurocontrol appealed, both decided that Republic of Germany and the Kingdom the Belgian judgments should be of Belgium on the Mutual Recognition enforced on the basis of the Brussels and Enforcement of Judgments, Convention. Arbitration Awards and Authentic Instruments in Civil and Commercial Germanair and Bavaria thereupon brought appeals before the Bundes­ Matters signed at Bonn on 30 June 1958;' gerichtshof which by orders dated 22 December 1976 in both cases stayed the proceedings and referred the following First paragraph of Article 56 question to the Court of Justice for a preliminary ruling under Article 3 of the The Treaty and the conventions referred to in Article 55 shall continue to have Protocol of 3 June 1971 on the effect in relation to matters to which this Interpretation of the Brussels Convention: Convention does not apply.'

'Such is the case in a dispute which, like can no longer apply under the first that between the parties to the main paragraph of Article 56 thereof in a case action, concerns the recovery of charges such as the present. payable by a person governed by private law to a national or international body Since according to that judgment the governed by public law for the use of Brussels Convention concerns only civil equipment and services provided by such and commercial matters, the first body, in particular where such use is paragraph of Article 56 of the obligatory and exclusive.' (ibid. at p. Convention also can concern only that 1551) legal sphere. According to that article therefore the bilateral conventions 4. A copy of each order for reference referred to in Article 55 continue to have was received at the Court on 25 January effect only in so far as they relate to civil 1977. and commercial matters listed in the second paragraph of Article 1 of the Bavaria and Germanair, represented by Brussels Convention, to which it does Günther B. Krause-Ablass, Rechtsanwalt, not apply. Eurocontrol, represented by Hans Erich Brandner, Rechtsanwalt, the Government The German-Belgian Convention, of the Federal Republic of Germany, according to Article 1 thereof, applies represented by Walter Holtgrave, and the likewise only to civil and commercial Commission of the European matters and not to matters of public law. Communities, represented by its Legal According to the first paragraph of Adviser, Peter Karpenstein, submitted Article 56 of the Brussels Convention written observations in accordance with and likewise in respect of the Article 20 of the Protocol on the Statute German-Belgian Convention the concept of the Court of Justice of the EEC. of 'civil and commercial matters' can have no other interpretation than that After hearing the report of the contained in the first paragraph of Judge-Rapporteur and the views of the Article 1 of the Brussels Convention. Advocate General the Court by order Accordingly the German-Belgian dated 4 May 1977 in accordance with Convention does not apply mainly Article 43 of the Rules of Procedure because the present case is not concerned ordered that the two cases should be with a civil or commercial matter but

being excluded from the field of application of the Brussels Convention. The present case concerns a matter Then however the German-Belgian which is a priori excluded from the field Convention of 1958 may be applicable to of application of the Brussels Convention the present case. This is for the German and not one which is simply excluded by courts to consider. It is not contested that the second paragraph of Article 1. as far as that Convention is concerned For cases where the Brussels Convention the applicable law for the purpose of establishing whether it is a civil or a priori does not apply the Brussels commercial matter is that of the State in Convention has not 'replaced' the which judgment is given. The judgment German-Belgian Convention, which to of the Belgian court, which is thus the this extent continues to apply. It is right that this should be so; this is in accord sole criterion, has decided in the present with Articles 55 and 56 of the Brussels case that it is a civil and commercial matter. This must be respected under the Convention and with its objectives terms of the bilateral German-Belgian of facilitating and not reducing Convention. The interpretation of opportunities for the enforcement of Community law which the Court judgments as compared with the position adopted in Case 29/76 cannot be existing before it entered into force. extended to the German-Belgian Eurocontrol therefore proposes that the Convention. question put should be answered as follows:

agreements referred to in Article 55 in The court making the reference does not relation to the Brussels Convention, is simply wish to know in general whether, based upon the principle that the in a case where the Brussels Convention Brussels Convention does not affect the does not apply on the basis of Article 56 agreements existing between the various thereof, it may have recourse to a Member States in so far as they go bilateral agreement concluded previously. beyond the scope of the Brussels It is concerned with whether recourse to Convention. the agreements referred to in Article 55 of the Brussels Convention is also According to this provision therefore all possible where the inapplicability of the matters which do not fall within Article Brussels Convention arises as a result of 1 of the Brussels Convention are to be an earlier classification by the Court of regarded as matters to which the the legal nature of the case in question. Convention does not apply. A limitation It is a question of the scope of that to the matters listed in the second judgment of the Court and whether such paragraph of Article 1 is not intended. It a judgment prevents recourse to other accords with the interests of the parties agreements on enforcement. and the meaning of the said first paragraph of Article 56 always to apply Even considered in this light bilateral agreements where the Brussels nevertheless Article 56 of the Brussels Convention, according to its terms, does Convention must be interpreted as not apply to the matters in question. allowing recourse in circumstances such Judgments which have been given in as those in the present case to the cases which do not concern civil and agreements referred to in Article 55. commercial matters within the meaning of the Brussels Convention, as According to the terms of its preamble interpreted by the Court, can therefore the object of the Brussels Convention is be recognized and enforced under the to facilitate the recognition of judgments bilateral agreements for enforcement if within the Community. It seeks to they come within their scope. secure the simplification of formalities governing the reciprocal recognition and The German Government proposes that enforcement of judgments of courts or the question referred to the Court for a tribunals in the Member States and thus

be circumvented or simply not followed, Article 57 provides that not only existing since: agreements but also future ones are — The court making the reference says unaffected in so far as, in relation expressly that it accepts the judgment to particular matters, they govern of the Court given in respect of the jurisdiction and the recognition and first paragraph of Article 1 of the enforcement of judgments. The Brussels Brussels Convention; it merely seeks Convention seeks to prevent neither the to verify whether the Belgian application nor the introduction of rules judgment can be declared enforce­ giving a party within the Community able under the German-Belgian more extensive protection in matters to Convention. which it does not apply. — The application or the German- Belgian Convention does not conflict The Commission proposes that the with the judgment in Case 29/76 question referred to the Court for a because the Court limited itself in preliminary ruling should be answered as that judgment to an interpretation of follows: the concept 'civil and commercial matters' used in the first paragraph of 'Article 56 of the Brussels Convention Article 1 of the Brussels Convention. To ensure that the Brussels must be interpreted as meaning that the Convention should be applied treaty and conventions referred to in Article 55 continue to have effect in uniformly in all Member States, the Court does not interpret this concept relation to the recognition and as a mere reference to national law enforcement of judgments even when the but as an independent concept of inapplicability of the Convention to Community law. This does not particular matters results from a preclude the concept 'civil and substantive classification by the Court on commercial matters' in bilateral the basis of the first paragraph of Article 1 of the Convention. agreements which are not subject to the jurisdiction of the Court from being interpreted differently, as regards its substance, by national III — Oral procedure courts or at least as binding the court of execution to the classification given by the court where judgment The parties to the main action and the was given. Commission of the European Com­ munities submitted oral observations at

'1. In the interpretation of the concept "civil and commercial matters" for the purposes of the application of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, in particular Title III thereof, reference must not be made to the law of one of the States concerned but, 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;

2. A judgment given in an action between a public authority and a person governed by private law, in which the public authority has acted in the exercise of its powers, is excluded from the area of application of the Convention.'

4 The Court in the abovementioned judgment of 14 October 1976 has determined the scope of the Brussels Convention in relation to a judgment of the present kind by interpreting 'civil and commercial matters' as an independent concept and not as a reference to the internal law of one or other of the States concerned. This interpretation is based on the desire to ensure in relation to Community law that the Contracting States and parties concerned have equal and uniform rights and duties under the Brussels Convention. The principle of legal certainty in the Community legal system and the objectives of the Brussels Convention in accordance with Article 220 of the EEC Treaty, which is at its origin, require in all Member States a uniform application of the legal concepts and legal classifications developed by the Court in the context of the Brussels Convention.

7 Although this result may lead to the same expression in the Brussels Convention and in a bilateral agreement being interpreted differently, this is due to the different systems in which the concept 'civil and commercial matters' is used. In relation to a bilateral agreement the acceptance of a classification, made by the court first giving judgment, by the courts of another State could lead to an appropriate result having regard to the fact that the courts of the various States are independent one of another. On the other hand if this occurred in a system such as the Brussels Convention, the interpretation of which is entrusted to a court common to all parties, it would lead to undesirable divergencies.

Costs

8 The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the court making the reference, the decision as to costs is a matter for that court.

On those grounds,

THE COURT

in answer to the question referred to it by the Bundesgerichtshof by orders dated 22 December 1976, hereby rules:

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 16 JUNE 1977 <apnote>1</apnote>

Mr President, delivered the judgment to be enforced Members of the Court, but must be regarded as an independent concept. On 14 October 1976 in Case 29/76 referred to the Court for a preliminary On this basis the Court decided that ruling by the Oberlandesgericht Düssel­ 'although certain judgments given in dorf in an action between Eurocontrol actions between a public authority and a and Lufttransportunternehmen GmbH & person governed by private law may fall Co. KG in relation to the recovery of within the area of application of the route charges claimed by Eurocontrol the Convention, this is not so where the Court considered ([1976] ECR at p. 1551) public authority acts in the exercise of that the words 'in civil and commercial its powers'. 'Such is the case', the Court matters' used in Article 1 of the added, 'in a dispute which, like that Convention of 27 September 1968 on between the parties to the main action, Jurisdiction and the Enforcement of concerns the recovery of charges payable Judgments in Civil and Commercial by a person governed by private law to a Matters did not depend on the national or international body governed classification given by the court which by public law for the use of equipment

1 — Translated from the French.