C-25/81

JUDGMENT OF 31. 2. 1982 — CASE 25/81

Jurisdiction and the Enforcement of measures relating to matters which Judgments in Civil and Commercial are excluded from it. Matters if such management is closely connected with the relationship 3. Anicie 18 of the Convention of 27 resulting directly from the marriage September 1968 must be interpreted bond. as meaning that it allows the defendant not only to contest the jurisdiction but to submit at the same 2. Article 24 of the Convention of 27 time in the alternative a defence on September 1968 may not be relied on the substance of the action without to bring within the scope of the however losing the right to raise an Convention provisional or protective objection of lack of jurisdiction.

In Case 25/81

REFERENCE to the Court under the Protocol of 3 June 1971 on the in- terpretation 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 Hoge Raad der Nederlanden [Supreme Court of the Netherlands] for a preliminary ruling in the action pending before that court between

C. H . W., residing at Ekeren, Belgium, appellant in cassation against a judgment of the Gerechtshof [Regional Court of Appeal], The Hague, delivered between the parties and pronounced on 14 December 1979 and respondent in the cross-appeal in cassation, represented by O. de Savornin Lohman, Advocate at the Hoge Raad,

and

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of registered in Rotterdam were attached the procedure and the observations on the application of his wife. The submitted under Article 20 of the attachment was to secure a debt which Protocol on the Statute of the Court of Mrs W. claimed to have against her Justice of the European Economic husband for his alleged unauthorized Community may be summarized as and therefore improper management of follows: her separate property.

interlocutory relief and in substance Mrs W. made submissions on the asked the court to order his wife to substance although she claimed that the deliver up to his counsel a document President of the Arrondissementsrecht- described as a codicil, to destroy any bank did not have jurisdiction to copy or reproduction of that document entertain the dispute. which might exist and to restrain Mrs W. from using the document in any proceedings or in any other manner whatsoever upon penalty of a fine. That document, written and signed by Mr H. By judgment of 7 May 1979 the in March 1978 bore the words: "Codicil President of that court accepted that he G. J. H. To be opened after my death" had jurisdiction and found against Mr and was placed in the safe at the couple's H. on the substance. second home in Switzerland from which it was taken by the wife during an absence of her husband in July 1978. On 18 May 1979 Mr H. appealed against that 'judgment to the Gerechts- The content of the codicil, which was hof, The Hague, seeking in substance known to Mrs W., was as follows: that his application at first instance should be upheld. Mrs W. cross-appealed contending that the President had erred in considering he had jurisdiction to "I hereby declare that all transactions in entertain her husband's applications. futures in silver, dollars and Dutch currency, which were entered into by me during 1977 and 1978, were concluded without the knowledge of my wife. I hereby direct that all eventual losses Bv judgment of 14 December 1979 the incurred on those transactions up to and Gerechtshof dismissed the cross-appeal. including 5 January 1979 shall fall on my It accepted that the codicil, which was in bank deposits. I hereby instruct my heir issue in the proceedings and to which the to ensure that my wife does not suffer applications related, was located in the any financial loss as a result of the Netherlands, namely with Mrs W s transactions which I have entered into in counsel, and that he intended to use the those years for her and in her name." codicil as evidence in proceedings pending between the parties before the Rotterdam court; in those circumstances, In support of his application Mr H. especially since the parties were claimed that the manner in which his Netherlands nationals and therefore after wife had obtained possession of the his death the husband's estate would in document in issue was unlawful and he all likelihood devolve according to argued that while he was alive the Netherlands law, the husband could document belonged to him alone. He apply to the President of the Rotterdam also contended that because it was coun for urgent interlocutory relief and against his will the wife's action in taking that the President had jurisdiction to possession of and retaining the document decide the application. As regards the was unlawful as against him and that the main appeal the Gerechtshof overturned document was incorrect in part, thus the judgment of the President and in a rendering any use thereof by Mrs W. new ruling ordered the delivery up of the unlawful. document in issue to Mr H's counsel,

restrained Mrs W. from making any use (a) Does the exclusion of "wills and thereof, and made the breach of its succession" from the application of judgment subject to a fine. the Convention, provided for by the opening words of the second paragraph of Article 1 and subpara- graph (1) thereof, apply to applica- Mrs W. appealed in cassation and Mr H. tions by the person making a codicil cross-appealed in cassation. held by another person for the delivery up of that codicil, the de- struction of photocopies, transcripts and reproductions thereof, and an The issue which arose in the main appeal injunction against holding or using was whether the Gerechtshof was right (or causing to be held or used) any to hold that the President of the Arron- photocopy, transcript or repro- dissementsrechtbank, Rotterdam, had duction of that document for the jurisdiction to entertain Mr H's purpose of preventing the dec- application relating to the codicil in issue larations contained in the codicil in the proceedings. The Hoge Raad from being used against the person considered that in order to resolve that making the codicil as evidence in a issue it was necessary to determine legal dispute which does not relate to whether or not the Convention on a will or succession? Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters concluded in Brussels on 27 September 1978 was applicable. (b) Does the exclusion of "rights in property arising out of a matrimonial relationship" from the application of the Convention, provided for by the According to the Hoge Raad, if the opening words of the second Convention is not applicable then the paragraph of Article 1 and subpara- Gerechtshof's opinion that the urgent graph (1) thereof, apply to applica- interim relief applied for in this case tions as described in (a) above if they must be ordered in Rotterdam means are made in order to prevent the that the President of the Rotterdam declarations contained in the codicil court has jurisdiction to entertain the from being used against the person applications for those measures. If the making the codicil in a legal dispute Convention does have application, about alleged unauthorized or however, the Hoge Raad believes that improper management by that person the question arises whether the effect of of his wife's separate property, where Article 24 or of Article 18 of the that management must be regarded Convention is that the President of the as being closely connected with Rotterdam court must be considered to proprietary relationships flowing have jurisdiction in the matter. directly from the marriage bond?

plying for interim relief in interlocu- the law of succession or is it an tory proceedings? Does the fact that independent disposition? the relief is sought in connection with other proceedings pending in the Netherlands affect the answer? (b) In Netherland's legal theory, where the spouses live under joint matri- monial property arrangements does a document which is apparently (d) Must the entering of appearance by intended to establish a balance the defendant solely in order to between profit and loss in favour of contest the jurisdiction of the court, the wife after the death of one of referred to in the second sentence of the parties come under proprietary Article 18, be taken to cover a case rights arising out of a matrimonial where the defendant contests the relationship? court's jurisdiction and at the same time challenges in the alternative the substance of the application in case (c) Why should interlocutor)· applica- the court decides that it has tions for interim relief referred to in jurisdiction? the Netherlands Code of Civil Procedure be considered or not be considered to be "provisional, including protective, measures" The judgment making the reference for a within the meaning of Article 24 of preliminar)' ruling was registered at the the Convention?". Court on 17 March 1980.

In accordance with Article 20 of the The Commission. the Netherlands Protocol on the Statute of the Court Government and the defendant in the written observations were submitted by main action have answered those the Commission of the European Com- questions within the time allowed. munities, represented by A. McClellan acting as Agent and assisted by J. C. Schultsz, by Mr H., the respondent in the main action, represented by his II — O b s e r v a t i o n s s u b m i t t e d p u r - Counsel, P. Mout, and by the Italian s u a n t to A r t i c l e 20 of the Government represented by its Agent, S t a t u t e of the C o u r t of Arnaldo Squillante, and Oscar Fiumara, Justice Avvocato dello Stato.

It therefore submits that the second question of the Hoge Raad should be answered in the negative because it Furthermore the Commission believes considers that the exclusion of "rights in that the question how proceedings for property arising out of a matrimonial the grant of interim relief are treated relationship" does not arise either in may not depend on such an unpre- this case. After studying the relevant dictable factor as the commencement of Netherlands law the Commission is led other proceedings and therefore the fact to the conclusion that as far as the that the relief is sought in conjunction management of the wife's property is with proceedings pending in the Nether- concerned the husband is no different lands has no special significance for the from a third party acting as agent. Any purposes of the main question as to agent would be just as liable if he had whether Anicie 24 of the Convention exposed the principal's property to the applies to such proceedings. risk of transactions in futures; the special relationship between husband and wife plays no part in the matter. However the Commission submits that the interlocutor)· proceedings in this case for the lifting of attachment are covered by Article 24 of the Convention since As regards the third question the they are closely related to protective and Commission first of all observes that it in similar measures covered by that article. fact consists of two questions, namely whether the "provisional, including protective, measures" referred to in Article 24 of the Convention cover the In conclusion the Commission submits procedure under Netherlands law for the that the third question should be grant of interim relief and whether it is answered as follows: material to that question that the interim relief is sought in conjunction with other proceedings pending in the Netherlands. "Except in cases concerning the lifting of attachment or other closely related applications the term "provisional, in- It first recalls the case-law of the Court cluding protective, measures" appearing on the need to construe the basic in Article 24 of the Convention does not concepts of the Convention indepen- cover the interlocutory proceedings dentlv. After examining Netherlands referred to in Anicie 289 et seq. of the legal theory and laws on proceedings for Netherlands Code of Civil Procedure. the grant of interlocutory relief it comes The fact that the interim relief is applied to the conclusion that the operative pans for in conjunction with other pro- of interlocutory orders van· a good deal ceedings pending in the Netherlands is in nature and similarly the notion of immaterial."

The respondent submits that the second 3. The Italian Government makes question should be answered in the af- obsenations only on the fourth question firmative as well. He contends that the asked by the Hoge Raad concerning the proceedings for interlocutory relief in second sentence of Article 18 of the this case are directly connected to the Convention. proceedings concerning the management of property and therefore may be considered as forming part of those It refers to the observations which it proceedings so that, together with the submitted in Case 27/81 in which a proceedings concerning the management similar question was asked by the Court of property, the proceedings for interim of Appeal, Versailles. relief are one of the matters excluded from the application of the Convention on Jurisdiction and the Enforcement of In its view the second sentence of Article Judgments. 18 of the Convention does not prevent a defendant who contends that the court has no jurisdiction from submitting in As regards the third question he believes the alternative other objections or that owing to their legal nature and pro- grounds of defence and whether those visional character the proceedings under submissions are compatible with the Netherlands law for interlocutory relief rh.illrntrp to iurisdiction referred to in

W. v H.

the second sentence of Article 18 must The Italian Government accordingly be appraised in accordance with the suggests that the answer to the question provisions of procedural law of the referred by the Hoge Raad should be contracting States. that Anicie 18 of the Brussels Convention permits a defendant to make submissions on the substance at the same time as, but in the alternative, to, the challenge to jurisdiction envisaged in It observes that it is accepted both in that article so that the court before Italian law and that of other contracting which the matter is brought may, if States that they are compatible. necessary, rule on the substance and the challenge to jurisdicion in the same judgment.

JUDGMENT OF JI. 2. 1982 — CASE 25/ÍI

Commission continues, the case concerns of agents which the Commission dealt a document which governs only matters with in its previous written observations. which will arise or take effect only on a person's death it is necessary to be mindful on the one hand of Article 978 (a last will may be made only by a document in holograph or handwritten, As to the third question, the Commission by public document, or by secret or refers to its written observations which sealed disposition) and Anicie 1370 on basically deal with the issues raised in the other (future interests may be the that question. subject of an agreement). It adds that it is not possible to renounce a testamentary gift which has not taken effect or to deal with such gift even with the consent of the person whose estate is 2. The Netherlands Government, in at issue, save as stipulated in Article 146 answer to the first question, states that of Book I of the Civil Code. That article Article 982 of the Netherlands Civil deals with gifts between spouses which Code contained in the Fourth Section may be made only where a marriage (on the form of wills) of Part 12 (Wills) contract exists. of Book III of that Code provides for the possibility of making a codicil. That article reads as follows:

Section of Pan 12 of Book III). That It points out that this provision does not aniele reads: "A testament or last will is fall within matrimonial property rights a document wherein is stated what a however but is contained in Part 6 of person wishes to happen after his death Book I of the Civil Code: "Rights and and which may be revoked by that duties of spouses". person".

JUDGMENT OF 31. 2. 198: — CASE 25/81

whereby a document which the person As regards the third question, the who wrote it calls a "last will" or respondent thinks that interlocutory something similar is considered in applications for interim relief as referred general and by lawyers to be a last will to in Article 189 of the Netherlands for as long as that person is alive, even if Code of Civil Procedure must be its content may not be valid for some regarded as provisional or protective reason or other. measures within the meaning of Article 24 of the Brussels Convention because As far as the Court's second question is Article 292 of the Code states that concerned, the respondent thinks that "interlocutory judgments shall not affect the answer must be in the affirmative the outcome of the main action" and owing to the fact that the document because a judgment granting interlocu- referred to in the question contains an tory relief does not decide the dispute. amendment of the terms of the marriage He observes that any interlocutory contract. He observes that under proceedings may be followed by main Netherlands law the amendment of the proceedings although that rarely happens terms of a marriage contract is dealt with in practice and that according to within matrimonial property rights academic opinion it may be unlawful to (Article 118, Book I of the Civil Code). enforce an interlocutory judgment.

H e adds, however, that his answer to the IV — O r a l p r o c e d u r e second question does not mean that he believes that the codicil in question is a At the hearing on 18 November 1981 document as referred to in the question. oral argument was presented by the In so answering the question Mr H. still Commission of the European Communi- maintains his view that as long as he is ties represented by Anthony McClellan, alive the document which he calls a acting as Agent, and J. C. Schultsr, of codicil must be treated as a codicil in the Amsterdam Bar. law. Others may properly take cognizance of the document, use it or The Advocate General delivered her decide its legal nature only after his opinion at the sitting on 27 January death. 1982.

" 1 . Does the exclusion of 'wills and succession' from the application of the Convention, provided for by the opening words of the second paragraph of Anicie 1 and subparagraph (1) thereof, apply to applications by the person making a codicil held by another person for the deliver)' up of that codicil, the destruction of photocopies, transcripts and repro- ductions thereof, and an injunction against holding or using (or causing to be held or used) any photocopy, transcript or reproduction of that document for the purpose of preventing the declarations contained in the codicil from being used against the person making the codicil as evidence in a legal dispute which does not relate to a will or succession?

2. Does the exclusion of 'rights in propeny arising out of a matrimonial relationship' from the application of the Convention, provided for by the opening words of the Convention, provided for by the opening words of the second paragraph of Anicie 1 and subparagraph (1) thereof, apply to applications as described in 1. above if they are made in order to prevent

JUDGMENT OF 31. 3. 1982 — CASE 25/81

the declarations contained in the codicil from being used against the person making the codicil in a legal dispute about alleged unauthorized or improper management by that person of his wife's separate property, where that management must be regarded as being closely connected with proprietary relationships flowing directly from the marriage bond?

3. Does the concept of 'provisional, including protective, measures' referred to in Article 24 cover the possibility, provided for in the Eighteenth Section of P a n 13 of the First Book of the Netherlands Code of Civil Procedure [Wetboek van Burgerlijke Rechtsvordering], of applying for interim relief in interlocutory proceedings? Does the fact that the relief is sought in connection with other proceedings pending in the Netherlands affect the answer?

7 By its very wording the second question has in view a case in which the management of the wife's property in question must be considered as being closely connected with the proprietary relationship between the spouses flowing directly from their marriage bond.

s Therefore an application for provisional measures to secure the delivery up of a document in order to prevent the statements which it contains from being used as evidence in an action concerning the management of the wife's property must also be considered to be connected with rights in property arising out of a matrimonial relationship within the meaning of the Convention because of its ancillary nature.

s Therefore the answer to the second question must be that an application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an action concerning a husband's management of his wife's property does not fall within the scope of the Convention if such management is closely connected with the proprietary relationship resulting directly from the marriage bond.

ic In view of that answer there is no need to reply to the first question.

The third question

n The foregoing conclusion is not affected by Article 24 of the Convention which states that: "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".

On those grounds,

THE COURT,

in answer to the question submitted to it by the Hoge Raad der Nederlanden by judgment of 6 February 1981, hereby rules:

V. v H.

1. An application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an action concerning a husband's management of his wife's property does not fall within the scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters if such management is closely connected with the proprietary relationship resulting directly from the marriage bond.

2. Article 24 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters may not be relied on to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded from it.