C-27/81

J U D G M E N T O F T H E C O U R T (THIRD CHAMBER) 22 O C T O B E R 1981 1

Établissements Rohr Société anonyme y Dina Ossberger (reference for a preliminary ruling from the Cour ďAppel Versailles)

(Brussels Convention : Objection contesting jurisdiction without a defence as to the substance)

Case 27/81

Convention on Jurisdiction and the Enforcement of Judgments — Agreement on jurisdiction — Appearance entered by the defendant in the court seised — Appearance entered not only to contest the jurisdiction hut also to present a defence on the substance — Entering an appearance does not entail submission to the jurisdiction (Convention of 27 September 1968, Art. 18)

Article 18 of the Convention of 27 submit at the same time in the alternative September 1968 must be interpreted as a defence on the substance of the action meaning that it allows the defendant not without, however, losing his right to only to contest the jurisdiction but to raise an objection of lack of jurisdiction.

DINA OSSBERGER, trading as Firma Ossberger Turbinenfabrik, Weissenburg, Federal Republic of Germany,

on the interpretation of Article 18 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,

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

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

in all to DM 120 216, together with taxing order of the Landgericht Ansbach interest. Before the Landgericht Rohr of 5 February 1979. The court acceded argued that that court had no to that request by an order of 5 June jurisdiction ratione loci but did not 1979. submit any defence as to the substance. Rohr lodged an appeal against that order By a provisionally enforceable final with the Cour d'Appel, Versailles, judgment of 15 December 1978 the claiming in particular that pursuant to Landgericht Ansbach considered that the Article 18 of the Brussels Convention it clause in question conferring jurisdiction was impossible to lodge a defence as to was valid under Article 17 of the Brussels the substance before the German courts Convention of 27 September 1968 and, since the right to raise the objection of having regard to the fact that Rohr failed lack of jurisdiction would thereby be to defend the substance of the claim, lost. The fact that the German courts did ordered it to pay Ossberger the principal not restrict themselves to giving a ruling sum of DM 120 216 with interest and to on jurisdiction but also gave judgment pay the costs. The costs were taxed at on the substance of the case constitutes a DM 4 742.24 with interest by an order manifest infringement of the rights of the of the Landgericht Ansbach of 5 defence and is accordingly contrary to February 1979. public policy within the meaning of Article 27 (1) of the Brussels Convention, which infringement precludes recog- Rohr appealed to the Oberlandesgericht nition of that judgment in France. Nürnberg [Higher Regional Court, Nuremberg]. In the course of the Ossberger contended before the Cour appellate procedure Rohr merely relied d'Appel, Versailles, that Article 18 of the upon the objection of lack of jurisdiction Brussels Convention, like Articles 74 and and did not submit any defence as to 76 of the French Nouveau Code de

The appeal on a point of law by Rohr to the judgment obtained in Germany is Bundesgerichtshof [Federal Court of accordingly enforceable in France under Justice] was dismissed as inadmissible by the provisions of the Brussels an order of 19 March 1980 because the Convention. grounds for the appeal were not stated within the prescribed time-limits. Article 18 of the Brussels Convention is worded as follows: 2. Even before the judgment of the "Apart from jurisdiction derived from Landgericht Ansbach of 15 December other provisions of this Convention, a 1978 had become final Ossberger court of a Contracting Sute before requested the President of the Tribunal whom a defendant enters an appearance de Grande Instance [Regional Court], shall have jurisdiction. This rule shall not Pontoise, to declare enforceable in apply where appearance was entered France that judgment together with the solely to contest the jurisdiction, or

where another court has exclusive Justice of the European Economic jurisdiction by virtue of Article 16." Community written observations were lodged by the Government of the Italian Since the Cour d'Appel, Versailles, Republic, represented by its Agent considered that the outcome of this case Arnaldo Squillante and Oscar Fiumara, depended upon a question of the in- Avvocato dello Stato, and by the terpretation of the Brussels Convention it Commission of the European Communi- decided, in a judgment of 26 November ties, represented by Anthony McLellan, a 1980, to stay the proceedings and Legal Adviser at the Commission, acting requested the Court of Justice to give a as Agent, assisted by Denis de Ricci, ruling, under the Protocol of 3 June Advocate, of the Cour de Paris. 1971 on the Interpretation by the Court of Justice of the Brussels Convention, on On hearing the report of the Judge- the following preliminary question: Rapporteur and the views of the Advocate General, the Court decided to "Must it be held with regard to all the open the oral procedure without any versions of the Convention of 27 preparatory inquiry.

3. The judgment making the reference the procedure relating to the objection of was received at the Court Registry on 16 lack of jurisdiction under the Italian February 1981. Codice di Procedura Civile [Code of Civil Procedure]. According to Articles In accordance with Article 20 of the 167, 183 and 184 the defendant may Protocol on the Statute of the Court of submit all the grounds of his defence not

only in the defence initially lodged is clearly for the national legal system to (comparsa di risposta) but throughout establish the formalities in accordance the entire course of the inquiry, so long with which the defendant may enter an as the investigating judge has not appearance in order to contest the submitted the case to the judges who jurisdiction. The Convention does not are required to deliver judgment. prohibit the defendant from adding in Nevertheless all the conclusions, the alternative other objections or including those relating to the substance, grounds of defence on the substance. must be set out in their entirety before The compatibility of the objection and the file is sent to the judges since, the alternative submissions must be pursuant to Articles 187 and 189, they appraised in accordance with the are in all cases to be seised of the matter provisions of procedural law in the in its entirety and may deliver a ruling various Contracting States.

the defence and ensure the quickest adverb "soltano", " n u r " , "uitsluitend" is possible procedure, on the other. Within intended to reinforce the notion of this framework, according to the appearance justified by the need to decisions of the courts it is possible to submit the objection of lack of submit the objection that a foreign court jurisdiction. A contrary view seems and not an Italian court has jurisdiction, illogical. A defendant who considered as a means of avoiding implied that the court before which the submission to the jurisdiction of the

tive. The opposite method would pave the way for serious undesirable practices since any defendant who wished to postpone the conclusion of the N o difficulty of interpretation arises proceedings could enter an appearance from the French version of Article 18. It to submit an objection of no jurisdiction

thereby considerably protracting the Jenard Report shows that "it will be proceedings by forcing the court first of necessary to refer to the rules of all to give a ruling concerning procedure in force in the State of the jurisdiction alone. court seised of the proceedings in order to determine the point in time up to which the defendant will be allowed to The Italian Government accordingly raise this plea [of lack of jurisdiction], suggests that the reply to the question and to determine the legal meaning of submitted should be that Article 18 of the term 'appearance' ".

In this priate, covering both the substance and case under Article 39 of the German the objection submitted. Zivilprozeßordnung, the provisions of whicn are in fact comparable to Articles 74 and 76 of the French Nouveau Code 2. Observations of the Commission de Procédure Civile, the objection of lack of jurisdiction must be submitted prior to any defence as to the substance The Commission observes first of all that or the objection becomes inadmissible a reply should be given not so much to but those provisions permit a party to put the question submitted, but to the forward at the same time any defence as question whether the enforcement of the to the substance in the alternative since judgment of the Landgericht Ansbach the court may settle jurisdiction and give may be refused in this case on one of the a ruling as to the substance in the same grounds definitively listed in Articles 27 judgment. In this case the procedural and 28 and the second paragraph of arrangements relating to the objection of Article 34 of the Brussels Convention lack of jurisdiction are subject to the since, pursuant to the third paragraph of rules of procedure of German law. Article 28 the provisions concerning public policy may not be relied upon even if the foreign court clearly has no jurisdiction under the rules of the With regard to the grounds on which the Brussels Convention.

ROHR ν OSSBERGER

referred to in Article 27 (2), and that of Article 27 (2) lays down the only public policy. Unlike the common law of infringement of the rights of the defence certain States a serious irregularity in the which may constitute grounds for the procedure in a foreign State is not application. covered by the objection of public policy Since Article 18 does not contain within the framework of the Convention. provisions concerning the time-limit for Article 27 (2) constitutes the only ground raising the objection of lack of based on an infringement of the rights of jurisdiction it must be taken as inferring the defence for refusing to recognize a reference in this matter to the rules of a judgment. The point whether the procedure of the court of the State of proceedings are contested or not is not a the main action. Where the defendant matter of public policy. raises as his principal defence the objection of lack of jurisdiction and, in In conclusion the Commission suggests the alternative, advances a defence as to that the reply to be given to the question the substance the court must declare that should be as follows: it has no jurisdiction if it finds that it does not have jurisdiction under other "Pursuant to Article 34 the application provisions of the Convention. If, on the may be refused only for one of the other hand, the defendant, after putting reasons specified in Articles 27 and 28. forward the objection, withdraws it and submits a defence as to the substance, the court, where there is no other court Pursuant to the third paragraph of having exclusive jurisdiction under Article 28, saving the provisions con­ Article 18, must consider that the cerning jurisdiction in matters relating to defendant has submitted to its insurance and to sales on instalment jurisdiction." credit terms and to exclusive jurisdiction:

3 The judgment in question was given by the Landgericht Ansbach following proceedings instituted by Ossberger against Rohr for payment of various accounts for goods supplied by Ossberger. Since Rohr merely argued before the Landgericht that the court had no jurisdiction ratione loci and did not submit any defence on the substance, and since the Landgericht considered that it had jurisdiction in accordance with Article 17 of the Convention by reason of a clause conferring jurisdiction contained in Ossberger's general conditions of sale, Rohr was ordered to settle the said accounts and pay the costs. Rohr submitted an appeal to the Oberlandesgericht Nürnberg [Higher Regional Court, Nuremberg], again relying upon the objection of lack of jurisdiction without submitting any defence on the substance; that appeal was dismissed by a judgment of 13 June 1979 since the Oberlandesgericht Nürnberg considered that the Landgericht had jurisdiction under the provisions of the Convention and that Rohr had still failed to submit a defence on the substance in the course of the appellate procedure. A further appeal on a point of law by Rohr the Bundesgerichtshof [Federal Court of Justice] was dismissed as inadmissible by an order of 19 March 1980 because the grounds for the appeal were not stated within the prescribed time-limits.

4 Rohr argued before the Cour d'Appel, Versailles, that the recognition and enforcement of the judgments of the Landgericht Ansbach were contrary to public policy within the meaning of Article 27 (1) of the Convention: since Article 18 of the Convention made it impossible for Rohr to submit a defence on the substance before the German courts without losing the right to raise an objection of lack of jurisdiction, the fact that these courts did not restrict themselves to giving a ruling on jurisdiction but also give judgment on the substance of the case constituted a manifest infringement of the rights

7 The Court of Justice has had occasion to give a preliminary ruling on a similar question in its judgment of 29 June 1981 (Elefanten Schuh GmbH ν Jacqmain, Case 150/80, [1981] ECR 1671). In that judgment the Court declared: "Although differences between the different language versions of Article 18 of the Convention appear when it is sought to determine whether, in order to exclude the jurisdiction of the court seised, a defendant must confine himself to contesting that jurisdiction, or whether he may on the contrary still achieve the same purpose by contesting the jurisdiction of the court as well as the substance of the claim, the second interpretation is more in keeping with the objectives and spirit of the Convention. In fact under the law of civil procedure of certain Contracting States a defendant who raises the issue of jurisdiction and no other might be barred from making his submissions as to the substance if the court rejects his plea that it has no jurisdiction. An interpretation of Article 18 which enabled such a result to be arrived at would be contrary to the right of the defendant to defend himself in the original proceedings, which is one of the aims of the Convention."

8 This case has disclosed no factor of such a kind as to affect these findings. Accordingly the answer to the question submitted must be that Article 18 of the Convention of 27 September 1968 must be interpreted as meaning that it

JUDGMENT OF 22. 10. 1981 — CASE 27/81

allows the defendant not only to contest the jurisdiction but to submit at the same time in the alternative a defence on the substance of the action without, however, losing his right to raise an objection of lack of jurisdiction.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 22 October 1981.

For the Registrar H. A. Rühl A. Touffait Principal Administrator President of the Third Chamber