C-143/78

on the interpretation of subparagraph (1) of the second paragraph of Article 1 of the Convention of 27 September 1968.

THE COURT

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

Advocate General : J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

enforcement, requested the adoption of "Is the Convention of the European protective measures. By order of 19 Community of 27 September 1968 on January 1977 the judge of family matters Jurisdiction and the Enforcement of at the Tribunal de Grande Instance, Judgments in Civil and Commercial Paris, acceding to that request, auth­ Matters inapplicable to an order made by orized the putting under seal of the a French judge of family matters simul­ furniture, effects and other objects in the taneously with proceedings for the couple's flat at Frankfurt am Main and dissolution of marriage pending before a on the safe hired in the wife's name in a French court for putting under seal and banking establishment in the same city. freezing assets, since it relates to The judge also authorized the freezing proceedings incidental to an action of the wife's bank account and in concerning personal status or rights in addition declared that in the event of property arising out of a matrimonial difficulties the wife should have the right relationship (subparagraph (1) of the to apply for the adoption of interim second paragraph of Article 1 of the measures to the court dealing with the Convention)?" order for enforcement in the Federal The order referring the matter to the Republic of Germany. Court was lodged at the Court Registry In reliance on Article 31 of the on 19 June 1978. Convention of 27 September 1968 (here­ The appellant and the respondent in the inafter referred to as "the Convention"), main action, the Government of the Mr de Cavel applied to the President of Federal Republic of Germany, the the Landgericht (Regional Court) Government of the United Kingdom and Frankfurt am Main for an order for the the Commission submitted written obser­ enforcement of the decision of the vations in pursuance of Article 5 of the French court; however, the application Protocol of 3 June 1971 in accordance was dismissed on the ground that the with Article 20 of the Protocol on the applicant had not produced the Statute of the Court of Justice of the documents which, in accordance with EEC. Article 47 of the Convention must be On hearing the report of the Judge-Rap­ produced by the party applying for porteur and the views of the Advocate enforcement. General, the Court decided to open the An appeal against that decision was oral procedure without any preparatory dismissed by the Oberlandesgericht inquiry. (Higher Regional Court) Frankfurt am Main, which took the view that the Convention was not applicable in this II — Observations under Article

Germany and any bank accounts she actions relating to status and capacity may have there) authorized by the with which they are frequently French court, for which an order for connected, and by Article 27 (4) of the enforcement is sought from the German Convention the wording of which court, may be severed from proceedings implies that judicial decisions concerning relating to the status of persons and status and capacity only partially escape rights in property arising out of a the rules of the Convention relating to matrimonial relationship. recognition of judgments. The appellant in the main action draws Passing next to a consideration of the attention to Article 24 of the Convention question whether measures of the kind

ordering or authorizing provisional or second paragraph of Article 1. protective measures. The appellant in the main action suggests Thus the Convention itself recognizes in that the Court should rule that: principle in Article 24 the "severable" and independent nature of provisional "— Judgments delivered in the matter of and protective measures whilst subpara provisional and protective measures graph (1) of the second paragraph of must be viewed intrinsically and Article 1 of the Convention, which severed from any lawsuit as to the

DE CAVEL v DE CAVEL

Landgericht Frankfurt am Main an order probable". for the enforcement of the French order. On appeal the Oberlandesgericht Frankfurt am Main quashed that C — Observations of the Federal decision on the ground that the matter Republic of Germany came under the heading of status and According to the German Government in capacity of persons and was therefore order to ensure the most uniform excluded from the field of application of possible application of the Convention the Convention. The "Rechts the expressions "status of persons" and beschwerde" (appeal on a point of law) "rights in property arising out of a lodged before the Bundesgerichtshof is matrimonial relationship" must be still pending. interpreted in an independent manner Passing next to a consideration of the taking into consideration the objectives problems raised by the reference to the and the system of the Convention as well Court of Justice for a preliminary ruling, as the general principles which may be the respondent in the main action points discerned from the national legal out first of all the grounds of substance systems, viewed as a whole. on which she opposes the provisional In this respect important evidence may and protective measures which her be found in the Jenard report on the husband wishes to apply in Germany and Convention itself and in the Schlosser next maintains that these measures come report drafted on the occasion of within the sphere of rights in property negotiations for the accession of the new arising out of a matrimonial relationship Member States to the Convention and

of the decision as to the order for situations of the maintenance creditor enforcement with regard to the main and debtor. By reason of the growing tenance is pending so that the two importance accorded in Member States problems may be examined together. — within the framework of new family The respondent in the main action laws — to the principle of the joinder of suggests that "the decision with regard proceedings which means that courts to the reference for a preliminary ruling dealing with questions of status consider

whether ancillary decisions concerning not excluded from the sphere of judgments relating to the status of application of the Convention on persons come within its sphere of Jurisdiction and the Enforcement of application but that the new version of Judgments in Civil and Commercial Article 5 (2) regarding maintenance, Matters by reason of the fact that negotiated between the old and new they are proceedings ancillary to Member States by no means leads, by actions relating to the status of reason of its inapplicability to questions persons or rights in property arising of status, to the conclusion that it must out of a matrimonial relationship. not apply either to an ancillary decision. 2. The Convention may be applicable Finally the Government of the Federal to the placing under seal and Republic of Germany sees no special freezing of assets ordered by the necessity to treat provisional measures judge in family matters in the course adopted in the context of divorce of divorce proceedings to the extent proceedings otherwise than provisional to which it is (also) necessary to protective measures in general are protect maintenance obligations; it is treated. It follows that, where the right not applicable if the purpose is solely which is asserted falls as such within the to protect claims to matrimonial scope of the Convention the application property." of the Convention is not excluded by the fact that the claim is only provisional and D — Observations of the Government of is only made within the framework of the United Kingdom proceedings concerning status of persons. What is decisive on the other hand is the According to the Government of the nature of the right which the protective United Kingdom, the terms of Article 1 measure seeks to protect. In this respect of the Convention make it inapplicable the order referring the matter to the Court of Justice contains no information and the Government of the Federal Republic therefore considers, in reliance in particular on the Schlosser report to which reference has already been made, that, to the extent to which it may be possible, in the case of a provisional measure adopted in the course of divorce

to proceedings which are principally Convention (Article 3 (1)). Usually there concerned with the status of natural will be such a basis, but in divorce persons and proceedings for the proceedings that will not always be so. dissolution of marriage fall into that The Government of the United Kingdom category. In such proceedings the next deals with a similar problem relating Convention can therefore play no part to ancillary orders for maintenance. and the position is the same as regards Since the Convention applies to main­ orders ancillary to or made simul­ tenance (Article 5 (2)), even when the taneously with such proceedings since an obligation stems from the status of ancillary order must follow the course of persons, such orders cannot be made to the main proceedings. Divorce laws are accompany divorce or other status rooted in different moral and religious proceedings and this defect in the attitudes which make it difficult for one original Convention is the subject of an country to accept the decisions of the amendment which will be in the new text another country in these matters. By accepted by the nine Member States. excluding divorce judgments from its If the United Kingdom's contention is scope the Convention recognizes these differences and it would therefore be accepted and orders made ancillary to status proceedings are excluded from the illogical to require the courts of another Member State to assist in the exercise of scope of the Convention it does not follow that they will necessarily be such different jurisdictions by giving unenforceable in the courts of other effect to ancillary orders given in the countries. Under Article 56 existing course of exercising it. The French court bilateral conventions on recognition and whose decision is the subject of the enforcement of judgments continue to application for enforcement will not, apply to matters to which the when it entertained the divorce petition, Convention does not apply. have been bound by the rules of the Convention regarding the assumption of The United Kingdom takes the view that jurisdiction over persons domiciled an order freezing property in elsewhere in the Community; it may anticipation of an ultimate redistribution even be that in the framework of the of the property of the spouses following Convention it would have had no a divorce would be sufficiently closely jurisdiction since territorial jurisdiction linked with rights arising out of a in divorce matters is in national matrimonial relationship to be covered legislation frequently determined by criteria which the Convention for its part does not admit.

by subparagraph (1) of the second scope for manoeuvre is not only paragraph of Article 1 of the Convention objectively unjustified but furthermore and thus excluded from the Convention's contrary to the Convention and in sphere of application. particular to Article 42, which is based on the principle that for any request for E — Observations of the Commission partial enforcement and, a fortiori, for any partial decision adopted within the In the view of the Commission the framework of a single action, the concepts "status of natural persons" and conditions for the applicability of the "rights in property arising out of a Convention are to be examined matrimonial relationship" must be separately. interpreted in an independent and The Commission takes the view in uniform manner for all Member States

Article 1 of the Convention because that application of the Convention. The question whether problems connected concept relates to the status of a person with divorce such as for example that of and not those aspects connected maintenance, must be treated in the therewith which concern property but that, on the other hand, that decision, context of the divorce proceedings or must constitute the subject-matter of which settles the legal situation of assets special proceedings, depends not only on belonging to one of the spouses, may the different national rules of procedure concern the matrimonial relationship of but also in certain cases on the desire of the parties to the divorce proceedings. the parties to the action to introduce The concept of "rights in property such questions into the divorce arising out of a matrimonial proceedings or to make them the subject relationship" is interpreted differently in

DE CAVEL v DE CAVEL

need to interpret the concept in a legal systems of the Contracting States, uniform manner. Once that choice has namely proceedings concerning the been made there is room for doubt creation, the existence and the ending of whether the interpretation should be rights in property arising out of a broad or restrictive. matrimonial relationship. Once this pre­ In favour of a restrictive interpretation of liminary question is dealt with the rights the concept of "rights in property arising and obligations flowing from such rights out of a matrimonial relationship", raise no further difficulties of the type limiting the exclusion of these matters which led the Contracting States to from the sphere of application of the exclude rights in property arising out of Convention, the following arguments a matrimonial relationship from the might be put forward: sphere of application of the Convention.

In favour of a broad interpretation of the The Commission consequently takes the concept of "rights in property arising out view that the decision of the judge in of a matrimonial relationship", extending family matters at the Tribunal de Grande the number of matters excluded from the Instance, Paris, does not concern rights sphere of application of the Convention, in property arising out of a matrimonial it might on the other hand be pointed relationship and that there is no occasion out that a restrictive interpretation does to establish whether his decision is based not sufficiently take into account the on provisions relating to such rights in economic significance of the concept in property or to special proprietary question. It follows, however, from the relationships between spouses or on the objective at which the Contracting States contrary on general civil law provisions were aiming that special proprietary of the legislative system applied by the relationships between spouses created by French court. Even if the decision were the rights in property arising out of their based on provisions relating to rights in matrimonial relationship must not be property arising out of a matrimonial excluded from the sphere of application relationship such rights as between since the exclusions referred to relate spouses engaged in divorce proceedings only to areas of law in which there are only constitute a preliminar)' question considerable differences between the not excluding the application of the

JUDGMENT OF 27. 3. 1979 — CASE 143/78

Decision

1 By an order of 22 May 1978, which was received at the Court on 19 June 1978, the Bundesgerichtshof referred to the Court of Justice for a pre­ liminary ruling pursuant to 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 (hereinafter referred to as "the Convention") a question relating to the interpretation of subparagraph (1) of the second paragraph of Article 1 of the Convention which excludes from the scope of the Convention the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession.

2 The question was raised in the context of a dispute concerning the enforcement in the Federal Republic of Germany of an order made on 19 January 1977 by the judge of family matters at the Tribunal de Grande

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Instance, Paris, authorizing, as a protective measure in divorce proceedings pending between the parties, the putting under seal of furniture, effects and other objects in the flat at Frankfurt-am-Main belonging to the parties and the freezing of the assets and accounts of the respondent at two banking establishments in that city. In reliance on Article 31 of the Convention the husband, who had commenced proceedings for the divorce, and in whose favour the author­ ization to freeze the assets was made, applied to the President of the Land­ gericht Frankfurt-am-Main for an order for the enforcement of the decision of the French court, but that application was dismissed on the ground that the applicant had not produced the documents referred to in Article 47 of the Convention.

JUDGMENT OF 27. 3. 1979 — CASE 143/78

6 In the words of Article 1, the Convention is to apply in "civil and commercial matters".

Nevertheless, because of the specific nature of certain matters, including "the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession", disputes relating to such matters are excluded from its scope.

7 The enforced settlement on a provisional basis of proprietary legal relationships between spouses in the course of proceedings for divorce is closely linked to the grounds for the divorce and the personal situation of the spouses or any children of the marriage and is, for that reason, inseparable from questions relating to the status of persons raised by the dissolution of the matrimonial relationship and from the settlement of rights in property arising out of the matrimonial relationship.

Consequently, the term "rights in property arising out of a matrimonial relationship" includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any proprietary relationships resulting directly from the matrimonial relationship or the dissolution thereof.

Disputes relating to the assets of spouses in the course of proceedings for divorce may therefore, depending on the circumstances, concern or be closely connected with:

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9 Furthermore, in relation to the matters covered by the Convention, no legal basis is to be found therein for drawing a distinction between provisional and definitive measures.

That conclusion is not affected by Article 24 of the Convention whereby: "Application may be made to the courts of a Contracting State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another Contracting State have jurisdiction as to the substance of the matter".

In fact that provision expressly envisages the case of provisional measures in a Contracting State where "under this Convention" the courts of another Contracting State have jurisdiction as to the substance of the matter and it cannot, therefore, be relied on to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded therefrom.

10 It may therefore be concluded that judicial decisions authorizing provisional protective measures — such as the placing under seal or the freezing of the assets of the spouses — in the course of proceedings for divorce do not fall within the scope of the Convention as defined in Article 1 thereof if those measures concern or are closely connected with either questions of the status of the persons involved in the divorce proceedings or proprietary legal relations resulting directly from the matrimonial relationship or the dissolution thereof.

Costs

Judicial decisions authorizing provisional protective measures — such as the placing under seal or the freezing of the assets of the spouses — in the course of proceedings for divorce do not fall within the scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgment in Civil and Commercial Matters as defined in Article 1 thereof if those measures concern or are closely connected with either questions of the status of the persons involved in the divorce proceedings or proprietary legal relations resulting directly from the matrimonial relationship or the dissolution thereof.

Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 27 March 1979.

A. Van Houtte H. Kutscher

Registrar President