C-120/79

JUDGMENT OF 6. 3. 1980 — CASE 120/79

2. A claim falls within the scope of the 4. The Convention is applicable, on the Convention where its own subject- one hand, to the enforcement of an matter is one of the matters covered interlocutory order made by a French • by the Convention even if it is court in divorce proceedings whereby ancillary to proceedings which, one of the parties to the proceedings because of their subject-matter, do is awarded a monthly maintenance not come within the Convention's allowance and, on the other hand, to sphere of application. an interim compensation payment, payable monthly, awarded to one of 3. The interim or final nature of a the parties by a French divorce judgment is not relevant to whether judgment pursuant to Article 270 et the judgment comes within the scope seq. of the French Civil Code. of the Convention.

In C a s e 1 2 0 / 7 9

R E F E R E N C E to the Court u n d e r the P r o t o c o l of 3 J u n e 1971 o n the Interpretation by the C o u r t of Justice of the C o n v e n t i o n of 27 September 1968 o n Jurisdiction and the Enforcement of J u d g m e n t s in Civil and C o m m e r c i a l M a t t e r s by the Bundesgerichtshof [Federal C o u r t of Justice] for a preliminary ruling in the action pending before that court between

LUISE DE C AVEL, NÉE BRUMMER, H ü g e l s t r a ß e 116, Frankfurt am M a i n ,

applicant and appellant,

Advocate General: J.-P. Warner Registrar: A. V a n H o u t t e

gives the following

JUDGMENT

Facts and Issues

The facts and the arguments advanced the ground that the decision of the by the parties in the course of the written French court constituted an interim procedure may be summarized as measure granted in the course of divorce follows: proceedings and was accordingly concerned with litigation relating to the status of persons, which fell outside the scope of the Convention of 27 September 1968 on Jurisdiction and the I — F a c t s and p r o c e d u r e Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as "the 1968 Convention") by reason of the provisions of sub- In the course of divorce proceedings paragraph (1) of the second paragraph of between the parties to the main action, Article 1 of the Convention. Mrs de the judge in matrimonial matters at the Cavei, the appellant in the main action, Tribunal de Grande Instance, Paris, by appealed to the Bundesgerichtshof order of 18 May 1977, ordered Mr de against the decision of the Oberlandes- Cavei to pay to his wife, pending gericht, seeking the restoration of the divorce, a maintenance allowance of FF order of the Landgericht Frankfurt am 3 000 per month. Main of 20 December 1977.

On the application of the wife, the Meantime, by judgment of 27 June 1978, President of the Landgericht [Regional the Tribunal de Grande Instance, Paris, Court] Frankfurt am Main on 20 granted divorce on the ground of the December 1977 made an order for the parties' mutual fault. Pursuant to Article enforcement of that order. On 2 May 270 et seq. of the French Civil Code that 1978 that decision was set aside on judgment awarded the appellant in the appeal by the Oberlandesgericht [Higher main action an interim compensatory Regional Court] Frankfurt am Main on allowance of FF 2 000 per month.

By order of 5 December 1979 the Court By order of 27 June 1979 the Bundes- decided to assign the case to the Third gerichtshof, in accordance with Article 3 Chamber, in accordance with Article 95 of the Protocol of 3 June 1971 on the of the Rules of Procedure. Interpretation by the Court of Justice of the 1968 Convention, requested the Court to give a preliminary ruling upon the following questions: II — O b s e r v a t i o n s submitted u n d e r A r t i c l e 20 of the " 1 . Is the European Convention P r o t o c o l on t h e S t a t u t e of applicable to the enforcement of an t h e C o u r t of J u s t i c e of t h e interlocutory order made by a EEC French judge in divorce proceedings, whereby one of the parties to the A — Observations of the appellant in the proceedings is awarded maintenance main action (Mrs de Cavei) payable monthly, or is this not a civil matter (subparagraph (1) of the second paragraph of Article 1 of the First question Convention)? The appellant in the main action considers that, having regard to the legal 2. Is the Convention applicable to the nature of a right to maintenance, the payment of interim compensation, 1968 Convention applies to the on a monthly basis, granted to one enforcement of the disputed claim. In of the parties in a French judgment principle, maintenance is a civil matter dissolving a marriage pursuant to within the meaning of the first paragraph Article 270 et seq. of the Code of Article 1 of the 1968 Convention and Civil?" subparagraph (1) of the second paragraph of the same article does not exclude it from the field of application of The order making the reference was the Convention. registered at the Court on 30 July 1979. That follows from the express reference The appellant in the main action, to maintenance in subparagraph (2) of represented by W. Beck of the Frankfurt Article 5 of the 1968 Convention and is am Main Bar, the respondent in the main confirmed by the commentaries of action, represented by L. Levi Valensin various authors and in particular by the of the Paris Bar, and the Commission of Report on the 1968 Convention (Official the European Communities, represented Journal 1979 C 59 p. 1), hereinafter by its Agent Mr Wägenbaur, assisted by referred to as "the Jenard Report", as Mr Krause-Ablaß of the Düsseldorf Bar, well as by the text of the Convention of submitted written observations pursuant 9 October 1978 on the Accession of the to Article 5 of the Protocol of 3 June Kingdom of Denmark, Ireland and the 1971 and in accordance with Article 20 United Kingdom of Great Britain and of the Protocol on the Statute of the Northern Ireland to the Convention on Court of Justice of the EEC. Jurisdiction and the Enforcement of Judgments in Civil and Commercial After hearing the report of the Judge- Matters (Official Journal 1978 L 304 Rapporteur and the views of the p. 1) and by the experts' report Advocate General the Court decided to concerning the Convention of Accession,

known as "the Schlosser Report" conciliation order may be the subject of (Official Journal 1979 C 59 p. 71). a declaration of recognition and an order for enforcement in the other contracting The appellant in the main action also States". relies upon the decisions of various national courts, especially the judgment of the Oberlandesgericht Karlsruhe of B — Observations of the respondent in 4 June 1976 (Synopsis of case-law, the main action (Mr de Cavei) published by the Documentation Branch of the Court of Justice of the European Construing the judgment of the Court of Communities, Part 2, 1978, No 54) and 29 March 1979 (Case 143/78 de Cavei, the judgment of the Cour d'Appel, above cited), the respondent in the main Brussels, of 1 April 1977 (Journal des action considers that that judgment, Tribunaux 1978, p. 119) as well as the since the intention was to deal with all observations of the Commission, the patrimonial legal relationships between United Kingdom and the Federal spouses, placed claims in regard to the Republic of Germany and the opinion of performance of maintenance obligations Mr Advocate General Warner in Case on a par with those which are ancillary 143/78 (de Cavei I [1979] ECR 1055). to actions relating to the status of The appellant considers, finally, that the persons. With reference to paragraph 31 soundness of her position is et seq. of the Schlosser Report he demonstrated directly by Article 42 of considers that the questions posed by the the 1968 Convention.

place in the proceedings which have given rise to the reference to the Court of Justice. The appellant expresses the In conclusion, the respondent in the view that the Bundesgerichtshof may main action asks the Court to rule that: have framed this question in order to obtain information with an eye to a "Judicial decisions authorizing interim or second case or an appeal from an final measures which are ancillary to inferior German court and she states divorce proceedings do not come within that, for her part, she is "content" to see the scope of the Convention of 27 this question presented.

JUDGMENT OF 6. 3. 1980 — CASE 120/79

If a of the 1968 Convention to a division between spouses of matrimonial compensatory payment awarded by a property does not have the character of a divorce judgment in accordance with decision on maintenance, subparagraph Article 270 et seq. of the French Civil (2) of Article 5 of the 1968 Convention Code — is necessary for it to give does not apply. If, on the contrary, a judgment, the Commission is of the payment fixed in the course of divorce opinion that, from the relatively short proceedings is intended to ensure the narrative of fact given in the order of the support of the spouse who is in need, Bundesgerichtshof, the possibility that a this is a matter of a maintenance reply to that question may also be obligation within the meaning of the necessary for the court making the 1968 Convention. Applying this criterion, reference cannot be ruled out. The the Commission considers that, since it is Commission consequently proposes that fixed "according to the needs of the an answer should be sent to both of the spouse to whom it is paid and the means questions which have been posed. of the other" (Article 271 of the French Civil Code) the maintenance payment is Under subparagraph (2) of Article 5 of a maintenance obligation within the the 1968 Convention a defendant meaning of subparagraph (2) of Article 5 domiciled in a contracting State may, in of the 1968 Convention.

DE CAVEL

3. Case-law and legal writers support the application of the Convention to 2. On the basis of Article 42 of the maintenance judgments given in the 1968 Convention (each matter dealt with course of divorce proceedings in the in the judgment has to be regarded majority of cases, and at least in the field separately for the purposes of of recognition and enforcement of those enforcement) and to subparagraph (4) of judgments. Although certain authors Article 5 (ancillary civil decisions given consider that, in regard to the question of the jurisdiction of the court involved in the course of criminal proceedings fall within the field of application of the under subparagraph (2) of Article 5, a Convention) the Commission considers special case has to be made in respect of that, although the 1968 Convention does ancillary maintenance claims, that view, not contain any express rules regarding at all events, concerns only the problem ancillary maintenance judgments, it is of the jurisdiction of the court before necessary from now on to regard this which the matter is brought and not that of the enforcement of an ancillary main- type of judgment, given in the tenance judgment, in regard to which all framework of divorce proceedings, as agree that the Convention applies. coming within the field of application of

p. 10). Moreover, cases in which one of Article 1 of the 1968 Convention the matters mentioned in the second whereas, on the contrary, litigation paragraph of Article 1 of the 1968 relating to maintenance obligations is the Convention has been the subject of a subject of the express provision of question preliminary to a judgment, subparagraph (2) of Article 5 of the which itself comes within the scope of Convention, from which it follows that the Convention, are expressly provided such litigation is not comprised in the for in subparagraph (4) of Article 17 of exclusions mentioned in the second that Convention. Indeed, that article paragraph of Article 1.

JUDGMENT OF 6. 3. 1980 — CASE 120/79

Grande Instance dealing with an interim on Jurisdiction and the Enforcement monthly maintenance allowance and also of Judgments in Civil and with a compensatory payment under Commercial Matters. Article 270 et seq. of the French Civil 2. Subparagraph (1) of the second Code must be looked at separately from paragraph of Article 1 of the the divorce proceedings for the purposes Convention of 27 September 1968 of recognition and enforcement under on Jurisdiction and the Enforcement the 1968 Convention. Given that both of Judgments in Civil and judgments are maintenance judgments Commercial Matters does, not within the meaning of subparagraph (2) exclude the enforcement of a pro- of Article 5 of the Convention, the visional compensatory payment, Convention applies without its being payable monthly, awarded to one of necessary to consider in the context of the parties by a French divorce the order for enforcement whether the judgment under Article 270 et seq. of Tribunal de Grande Instance, Paris, the Civil Code". properly assumed jurisdiction in regard to the maintenance judgments (third paragraph of Article 28 of the 1968 Ill — Oral procedure Convention). Having regard to the foregoing At the sitting on 31 January 1980 the considerations, the Commission proposes appellant, Mrs de Cavei, represented by that the questions submitted for a pre- Dr W. Beck, Rechtsanwalt, Frankfurt am liminary ruling be answered as follows: Main, the respondent, Mr de Cavei, " 1 . The enforcement of an interim represented by C. Roth, avocat at the measure granted in divorce Cour d'Appel, Paris, and the proceedings, whereby one of the Commission of the European parties is awarded a monthly main- Communities, represented by "W.-D. tenance allowance for the duration Krause-Ablaß, Rechtsanwalt, Düsseldorf, of the divorce proceedings, is not presented oral argument. excluded by subparagraph (1) of the The Advocate General delivered his second paragraph of Article 1 of the opinion at the sitting on 31 January Convention of 27 September 1968 1980.

2 The first question is directed towards ascertaining whether the Convention, and in particular Article 31 thereof which relates to the enforcement of judgments given in another contracting State, apply to "the enforcement of an interlocutory order made by a French judge in divorce proceedings, whereby one of the parties to the proceedings is awarded maintenance payable monthly" or whether, on the contrary, such a judgment must be considered as not being a "civil matter" within the meaning of subparagraph (1) of the second paragraph of Article 1 of the Convention. This question is raised in the context of proceedings relating to the enforcement in the Federal Republic of Germany of an order made on 18 May 1977 by the judge in matrimonial matters at the Tribunal de Grande Instance, Paris, awarding the wife, pursuant to Article 253 et seq. of the French Civil Code, an interim maintenance allowance pending divorce.

3 The second question asks, likewise, whether the Convention — in particular its provisions relating to the enforcement of judgments — is applicable "to the payment of interim compensation, on a monthly basis, granted to one of the parties in a French judgment dissolving a marriage pursuant to Article 270 et seq. of the Code Civil". In terms of the said Article 270, the payment in question is intended to compensate, so far as possible, for the disparity which the breakdown of the marriage creates in the parties' respective living standards. Article 271 provides further that the compensatory payment is to be fixed according to the needs of the spouse to whom it is paid and the means of the other, having regard to the position at the time of divorce and its development in the foreseeable future.

7 In so far as its field of application is concerned, no provision of the Convention links the treatment of ancillary claims to the treatment of principal claims. On the contrary, various provisions confirm that ^the Convention does not link the treatment of claims classified as "ancillary" to the treatment of the principal claim. In particular, such is the case with Article 42 which provides that, where a foreign judgment has been given in respect of several matters and enforcement cannot be authorized for all of them, the Court shall authorize enforcement for one or more of them, and with Article 24, which provides that application for such provisional, including protective, measures — which are, by definition, ancillary measures as may be available under the law of. a contracting State may be made to the courts of that State "even if, under this Convention, the courts of another contracting State have jurisdiction as to the substance of the matter".

s These provisions demonstrate unequivocally that the general scheme of the Convention does not necessarily link the treatment of an ancillary claim to that of a principal claim. In accordance with that principle, and in regard

DE CAVEL

precisely to the Convention's scope, a criminal court, the judgments of which, when given in its proper area of activity, are clearly excluded.from the scope of the Convention, has jurisdiction conferred upon it by Article 5 (4) of the Convention to entertain an ancillary civil claim, with the result that a judgment given on that claim will benefit from the Convention as regards its recognition and enforcement. That provision thus expressly provides that a claim ancillary to criminal proceedings, which are obviously excluded from the scope of the Convention, comes within it.

JUDGMENT OF 6. 3. 1980 — CASE 120/79

payment, payable monthly, awarded to one of the parties by a French divorce judgment pursuant to Article 270 et seq. of the French Civil Code.

Costs

1 3 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. 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 national court, the decision on costs is a matter for that court.

On those grounds,

T H E C O U R T (Third Chamber),