C-43/77

JUDGMENT OF 22. 11. 1977 — CASE 43/77

In Case 43/77

Reference to the Court under the Protocol of 3 June 1971 on the

Interpretation by the Court of Justice of the Convention of 27 September

1968 on Jurisdiction and the Enforcement of Judgments in Civil and

Commercial Matters by the Rechtbank van Eerste Aanleg (Court of First

27 September 1968,

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord

Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,

Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

INDUSTRIAL DIAMOND SUPPLIES v RIVA

Industrial Section, ordered Industrial judgment in the State in which that

Diamond Supplies, a partnership with judgment was given or if the time for limited liability having its registered such an appeal has not yet expired; in office in Antwerp, to pay Mr Luigi Riva, the latter case, the court may specify the a commercial representative residing in time within which such an appeal is to lodged.'

Turin, a sum of Lit 53 052 980 together be with interest at 8 % per annum from 14 November 1965 and to pay the costs of In fact, on 27 December 1976, Industrial the action. Diamond Supplies lodged an appeal in cassation against the judgment of the

By application of 16 November 1976, Mr Tribunale Civile e Penale, Turin, before Riva requested the Rechtbank van Eerste the Corte di Cassazione (Supreme Court

Aanleg (Court of First Instance), of Appeal), Rome; that appeal constitutes Antwerp, under Article 31 et seq. of the an ordinary appeal within the meaning Convention of 27 September 1968 on of Articles 30 and 38 of the Convention. Jurisdiction and the Enforcement of

asked the Court in essence to stay the 2. Is the nature of the appeal lodged

proceedings in accordance with Article against the judgment in the State in 30 of the Convention, which provides which that judgment was given to be that: determined solely in accordance with

the law of that State?

'A court of a Contracting State in which recognition is sought of a judgment The judgment of the Rechtbank van

given in another Contracting State may Eerste Aanleg, Antwerp, was entered in

stay the proceedings if an ordinary the Court Register on 18 April 1977. appeal against the judgment has been lodged,'

may, on the application of the appellant, Republic of Germany and on 7 July stay the proceedings if an ordinary 1977 by the Government of the United appeal has been lodged against the Kingdom.

JUDGMENT OF 22. 11. 1977 — CASE 43/77

After hearing the report of the An analogous distinction does not seem

Judge-Rapporteur and the views of the possible with regard to Ireland and the

Advocate-General, the Court decided to United Kingdom. Thus the authors of

open the oral procedure without any the draft Convention of Accession to the

of Germany considers that all appeals irreparable damage caused by the which must be lodged within short enforcement of a judgment which is not prescribed periods of time from the yet absolute and which has been given in delivery or notification of the judgment another State. The concept of ordinary and which may lead to the amendment appeal contained in Article 38 of the of a judgment with effect for the parties Convention must therefore be given a must be considered as ordinary appeals broad interpretation. The court must be within the meaning of Article 38 of the in a position to decide in each individual Convention. case whether it is necessary to take

measures for the protection of the (a) The report on the amendments to

be judgment debtor. made to the Convention having regard to the accession of the new

(c) It is impossible to make a direct Member States notes the total absence of

distinction between decision on the question whether an a clear rule on the appeal provided for by the law of another ordinary appeals and extraordinary State must be considered as ordinary on appeals. the basis of the law of the State in which There is no doubt that Berufung (appeal enforcement is sought. At most, to a higher court from a judgment of first reference may be made to the law of that

instance) and Einspruch (appeal against a State in order to ascertain whether an

Kassationsbeschwerde (appeal in cassa­ ordinary appeal may be based on various

tion Zuständigkeitsbeschwerde (appeal criteria, in particular the effects of that

on a question jurisdiction) and two of appeal or whether the legal system in cases of Wiederaufnahme (revision) in question wishes to give preference to the

Italy and Kassationsbeschwerde and interests of the judgment creditor or

Revision of decisions at first instance of those of the judgment debtor. The legal the Hoge Raad (Supreme Court of the system of the State in which enforcement

Netherlands) in the Netherlands are is sought does not, in particular in the

appeals is small or large debtor varies from one group of Member depends upon considerations which are States to another.

not necessarily valid with regard to

foreign judgments. (e) The effect to interpreting the

concept of an ordinary appeal directly on The classification of an appeal according the basis of the actual wording of the

to the law of the State in which Convention would be to make the

enforcement is sought should not protection given to the judgment debtor therefore be adopted as a criterion of within the Community to a large extent interpretation. uniform. It would be in complete

ordinary or extraordinary by reference to judgment was given in the classification

the characteristics which it bears in the of appeals but would not however grant

State in which the judgment was given it exclusive authority for this purpose.

(admissibility, periods within which

appeals must be lodged, scope of the The fact that the concept of ordinary examination by the court before which appeal in the Convention would thereby the appeal is brought) confirms this have a different meaning from that

argument. When the law of the State in which it has in the legal systems of

to take into account the objective of Convention must be understood for the

Article 38 of the Convention and its purposes of that Convention as having a protective aim. The protection of the different meaning from that which it has judgment debtor against the danger of in national law. definitive enforcement before judgment has been given on his appeal in the State (f) The direct interpretation of the

in which the original judgment was given concept of an ordinary appeal should not

depends in fact on the rules laid down in be based solely on the concept of res

the law of that State which, as a general judicata, as understood by the law of the rule, take into account the interests of State in which the judgment was given. It the parties only in so far as they are is necessary rather to have recourse to the

resident within that country. Because of idea, expressed in the second half of the

considered to be ordinary appeals. The Convention however results in actual and

period to be selected should be the not only formal uniformity of the legal longest period prescribed in the Member situation in all the Member States. It is States for the lodging of an appeal in more in accordance with themeaning of cassation (three months from the date on the Convention as an important step harmonization in­ which the judgment was notified). towards the of

ternational procedural law within the

EEC. It seems to be a necessary From the point of view of legal extension of the case-law of the Court of protection, only appeals which directly Justice on the Convention. concern the rights and duties of the

parties in relation to one another come

into consideration. There is no reason to (h) It is necessary to give the following give the court the possibility of reply to the questions submitted by the protecting the judgment debtor by a stay Antwerp court: of the proceedings unless the decision of

judgment was given, may only be lodged within a period of three months at the Besides, only appeals lodged before most after the judgment has been given courts of the same class may be considered as ordinary. This is not so in or notified and which may lead to the annulment of that judgment with effect the case of a Verfassungsbeschwerde for the parties to the procedure for the (constitutional complaint) under German enforcement of that judgment. law, which must be considered as a separate procedure.

The Government of the United Kingdom is of the opinion that the answer to these Those appeals which, in accordance with problems must be found solely in the law the law of the State in which the of the State in which the appeal has been judgment was given, may only be lodged or can be lodged. within a short period of time (not three after the exceeding months) judgment has been given or notified and (a) Under Articles 30 and 38 of the

which may result in the annulment of Convention it falls to the court in one

the judgment by the same court or by a Member State to determine the nature of

higher civil court, with effect for the an appeal in another. The issue will arise

parties to the procedure for enforcement, in a procedural context and require to be must be ordinary appeals considered as decided speedily. The tests to be applied

classifications. In the three other States extraordinary appeals seeks to achieve in which are parties to the 1968 Convention Articles 30 and 38 and then to formulate no such distinction appears in legislative a test which could be trusted to achieve

texts, but the differentiation is well these objectives. To state that the purpose

known in legal literature which classifies of Article 30 is to avoid an obligation to

certain types of appeal as ordinary accord recognition to a judgment which

appeals usually on account of the fact has not yet become res judicata and, if that they prevent a judgment from the appeal is successful, may never do so

becoming res judicata, while the rest are and that the object of Article 38 is to

New Member States. It is difficult to see any other

Community criterion which would

(d) In relation to the present States achieve the objectives more satisfactorily.

which are parties to the 1968 Convention and to Denmark it is a relatively easy (g) The existing distinctions drawn in matter to ascertain the ordinary or the national laws between ordinary and

extraordinary nature of the appeal from extraordinary appeals achieve roughly the the law of the Member States concerned, right result because as a general rule

and in relation to the United Kingdom ordinary appeals either have suspensory and Ireland the Convention itself can effect or have them unless enforcement

Convention is that the court giving able, sometimes subject to special judgment on an application for authorization, very much longer. The recognition or enforcement no longer discretion to suspend enforcement under decides as to the jurisdiction of the court Article 38 of the Convention should not which has given the original decision. be maintained too long. The distinction Such a system is possible because the between existing ordinary and procedure in the State in which the extraordinary appeals in the Member judgment was given involves all sorts of States appears to produce the right result guarantees for the person concerned, one in this respect without undue rigidity. of which is the duty for certain of the Any Community criterion making the highest courts to refer to the Court of classification of an appeal as ordinary Justice questions on the interpretation of dependent on its being available only for the Convention. If certain appeals were a stated length of time would operate considered as extraordinary, such as an much more arbitrarily. appeal in cassation, a decision could be enforced without that guarantee's coming (h) The only satisfactory answer to the into operation, since Article 38 would questions posed by the Antwerp court is not be applicable. that the nature of the appeal for the

purposes of Articles 30 and 38 of the The effect of a pourvoi en revision Convention must be determined solely in accordance with the classification of (revision) and a pourvoi en cassation

(appeal in cassation), to which the that appeal in the law of the State where questions which have been submitted the appeal has been or may be lodged. in the present case essentially refer is The Commission the European that, if they are successful, they annul in of law the situation created by the decision Communities considers that several against which they were lodged. One important advantages would be obtained might wonder whether it is desirable for by deducing a meaning of the concept of the Convention to offer no means of 'ordinary appeal'

that concept depended upon the national provisions. Nor does the aim of the

law of the Contracting States, the fate of Convention supply any arguments in a decision against which an appeal in favour of such an interpretation.

INDUSTRIAL DIAMOND SUPPLIES v RIVA

have Certain national legal systems consider difficult to apply since it does not an appeal the lodging of which suspends the same meaning in all the Contracting the enforcement of a decision to be an States.

'ordinary appeal'. The legal systems of the Contracting States frequently attribute to ordinary This interpretation is not supported appeals the characteristic that the either by the wording of Article 38 or by plaintiff is not, in lodging such appeals, the structure and objective of the limited to certain submissions which Convention. Article 38 appears in the must result in the annulment of the section of the Convention dealing with decision. This criterion does not however enforcement. Article 31, the first provision in that section, makes provide any help with regard to the

interpretation of Articles 30 and 38. Thus enforcement in another country subject a pourvoi en cassation (appeal in to the condition that the judgments in question are enforceable in the State in cassation), ordinary appeal in Italy and an

as to restrict the powers available to Not only does the wording of Articles 30 courts to stay the proceedings. However, and 38 conflict with such an the result of a restrictive interpretation of interpretation but it might in addition the words used in Article 30, departing have undesirable consequences. Since in from the terminology of the legal system several Contracting States the judgment within which the judgment was given, continues to have the force of res might be that a judgment settling a judicata in the event of an appeal there dispute between parties would not create would be no ordinary appeal within the rights in the country in which it was

meaning of the Convention in those given because under national law the States. Actions such as an appel would appeal which had been lodged would be therefore be classified quite abnormally considered as ordinary whilst the and that classification would not appear judgment would be recognized abroad in any of the legal systems of the because, possibly as a result of a

Contracting States. restrictive interpretation, that appeal

would be classified as extraordinary Nor is it possible to understand an within the meaning of the Convention. appeal ordinary meaning an appeal as This result seems undesirable. It would the lodging of which does not affect the go beyond the objective pursued by the fact that a decision has the force of res Convention which is to give judgments judicata. There is no confirmation of in the authority and effect which they have this the wording of Articles 30 and in the country in which they have been 38 and therefore that criterion is given. inappropriate for the purpose of

to what these two expressions precisely apply.

III — Oral procedure

With a view to the accession to the

Convention of the United Kingdom and Industrial Diamond Supplies, the

Ireland, it is planned to supplement plaintiff in the main action, represented

Article 38 by a provision which confirms by Christine Spaas, Advocate, of

(d) It is therefore necessary to reply as According to Mr Riva, a judgment follows to the question submitted by the in which is enforceable one Contracting Rechtbank van Eerste Aanleg, Antwerp: State must also be enforceable in another

Contracting State. An 'ordinary appeal'

within themeaning of Articles 30 and 38 of the Convention The Advocate-General delivered his of 27 September 1968 on Jurisdiction opinion at the hearing on 19 October and the Enforcement of Judgments in 1977.

Decision

1 By judgment of 7 April 1977, which was received at the Court on 18 April 1977, the Rechtbank van Eerste Aanleg (Court of First Instance), Antwerp, referred to the Court of Justice under Articles 2 (3) and 3 (2) of the Protocol

of 3 June 1971 two questions on the interpretation of the expression

action, having its registered office in Antwerp, was ordered by the Tribunale Civile e Penale (Civil and Criminal Court), Turin, to pay to Luigi Riva, the

defendant in the main action, a commercial representative residing in Turin, the sum of Lit 53 052 980, as commission owed by the plaintiff to the

defendant in the context of a contractual relationship between the parties,

together with interest and legal costs.

3 The judgment, which was given on 23 September 1976 by the Turin court on appeal from a decision of the Pretore of the same city, is at present

enforceable.

7 It is not in dispute that that appeal does not have the effect of suspending the

enforceability of the judgment given by the Turin court.

8 It is also established that Industrial Diamond Supplies has not sought a stay of execution in Italy.

9 Industrial Diamond Supplies requested the Antwerp court principally to

suspend the proceedings relating to the enforcement of the judgment given

by the Turin court until final judgment has been delivered between the

'1. What appeals are regarded as appeals in Articles 30 and 38 of

the Convention of 27 September 1968 or, in other words, to what

judgments are Articles 30 and 38 of the Convention applicable? or

2. Is the nature of the appeal lodged against the judgment in the State in

which that judgment was given to be determined solely in accordance State?'

with the law of that

13 During the procedure the view was expressed that Article 30 of the

Convention, which relates to the recognition and not the enforcement of

judgments, is not relevant to the proceedings and that the interpretation

'ordinary appeal'

requested concerns only the meaning of the expression

within the context of Article 38, which relates to enforcement.

15 Under Article 30 of the Convention, 'A court of a Contracting State in which recognition is sought of a judgment given in another Contracting State may stay the proceedings if an ordinary appeal against the judgment has been lodged'.

INDUSTRIAL DIAMOND SUPPLIES v RIVA

16 Under the first paragraph of Article 38, 'The court with which the appeal

under the first paragraph of Article 37 is lodged may, on the application of

the appellant, stay the proceedings if an ordinary appeal has been lodged against the judgment in the State in which that judgment was given or if the

time for such an appeal has not yet expired; in the latter case, the Court may

19 This view has been supported by the Government of the United Kingdom

and by the Commission, which both agree that the nature of an appeal for the purposes of Articles 30 and 38 must be determined by reference to the

national law of the Contracting State in which the original judgment was

given.

20 Mr Riva, without the fact that in Italy an appeal in cassation is contesting considered to be an ordinary appeal, takes the view that in any case a

judgment which is enforceable in Italy must also be considered as enforceable in Belgium so long as the enforceability of that judgment has not been

22 It follows from a comparison of the legal concepts of the various Member States of the Community that although in some States the distinction 'ordinary' 'extraordinary'

between and appeals is based on the law itself, in

JUDGMENT OF 22. 11. 1977 — CASE 43/77

other legal systems the classification is made primarily or even purely in the works of learned authors while in a third group of States this distinction is

completely unknown.

23 It is established moreover that in the legal systems in which the distinction 'extraordinary' 'ordinary' between and appeals is acknowledged by legislation or by learned authors, the classification of the various appeals for the purposes of that distinction gives rise to varying classifications.

25 Moreover, reference to a particular national legal system might perhaps oblige the court required to make a decision under Articles 30 and 38 of the

Convention to classify appeals of the same type inconsistently according to whether they belonged to the legal system of one or other of the Contracting

States.

26 The effect of the application of that criterion of interpretation would

therefore be to create even greater legal uncertainty since Article 38 requires

the Court before which an order for enforcement of the judgment is sought to take into consideration not only appeals which have been lodged at present

'ordinary appeal'

within the meaning of Articles 30 and 38 of the Convention must be determined solely within the framework of the system of the

Convention itself and not according to the law either of the State in which

the judgment was given or of the State in which the recognition or

enforcement of that judgment is sought.

INDUSTRIAL DIAMOND SUPPLIES v RIVA

30 Although, as a whole, the Convention is intended to ensure the rapid

enforcement of judgments with a minimum of formalities when those

judgments are enforceable in the State in which they were given, the specific purpose of Articles 30 and 38 is to prevent the compulsory recognition or

enforcement of judgments in other Contracting States when the possibility that they might be annulled or amended in the State in which they were

given still exists.

31 For this purpose Articles 30 and 38 reserve to the court before which a

'ordinary appeal'

to enable that court to stay the proceedings whenever

reasonable doubt arises with regard to the fate of the decision in the State in which it was given.

34 It is possible by applying this criterion alone to decide the outcome of a

request for recognition or enforcement based on a judgment which, in the

State in which the judgment was given, is at present the subject of an appeal

the State in which the judgment was given.

36 In that case, it is also necessary to bear in mind, in addition to the criterion

based on the possible effect of an appeal, all the relevant considerations

from the nature and conditions for the application of the judicial arising remedies in question.

37 Considered from this point of view, the expression 'ordinary appeal'

must be

39 Consequently it is impossible to consider as 'ordinary appeals'

within the

meaning of Articles 30 and 38 of the Convention in particular appeals which

are dependent either upon events which were unforeseeable at the date of the

original judgment or upon the action taken by persons who are extraneous to

the case, and who are not bound by the period for entering an appeal which

specify with regard to a party which is opposed to enforcement, although it

has not yet taken advantage of the possibility of lodging an appeal in the

State in which the judgment was given, a time within which its appeal is to be lodged.

42 It is therefore necessary to reply that, within the meaning of Articles 30 and 38 of the Convention, any appeal which is such that it may result in the

INDUSTRIAL DIAMOND SUPPLIES v RIVA

annulment or the amendment of the judgment which is the subject-matter of

European Communities, which have submitted observations to the Court, are not recoverable.

44 Since the proceedings are, so far as the parties to the main action are

concerned, a step in the action before the national court, the pending decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Rechtbank van Eerste Aanleg of the judicial district of Antwerp by judgment of 7 April 1977, hereby rules:

according to the law either of the State in which the judgment was given or of the State in which recognition of enforcement

of that judgment is sought.

2. Within the meaning of Articles 30 and 38 of the Convention, any appeal which is such that it may result in the annulment or the amendment of the judgment which is the

subject-matter of the procedure for recognition or

enforcement under the Convention and the lodging of which

OPINION OF MR REISCHL — CASE 43/77

Delivered in open court in Luxembourg on 22 November 1977.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL 1 DELIVERED ON 19 OCTOBER 1977

Mr President, applying to the Italian court which

Members of the Court, delivered the contested judgment for a

pay a certain sum. On 27 December Jurisdiction and the Enforcement of

1976 a Kassationsbeschwerde (appeal in Judgments in Civil and Commercial

cassation) was lodged against that Matters (hereinafter referred to as 'the judgment before the Corte Suprema di Convention on Jurisdiction'). Cassazione (supreme court of appeal) in Rome; under Italian law such an appeal The plaintiff in the main action appealed

does not suspend the execution of the against this decision, which was made on contested judgment. Apparently no 25 November 1976, in accordance with

recourse was had to the possibility of Article 36 of the Convention on

1 — Translated from the German.