C-145/86

Mr President, 5. Relying on the decree of divorce, the Members of the Court, husband instituted proceedings before the Amtsgericht, Heidelberg in order to 1. In the questions which it has referred to terminate the maintenance order. His the Court for a preliminary ruling, the application was refused by a judgment of 25 Hoge Raad of the Netherlands seeks an January 1983 on the ground that the interpretation of a number of provisions of divorce had not been recognized in the the Brussels Convention of 27 September Federal Republic of Germany but the 1968 on Jurisdiction and the Enforcement amount of maintenance was reduced. of Judgments in Civil and Commercial Matters. I shall begin by setting out the background to the main proceedings. 6. On 28 February 1983 the wife served an attachment of earnings order on the husband's employer in the Netherlands, 2. In 1978, after 28 years of marriage, a pursuant to the German judgment, in German national, Mr Hoffmann (here­ respect of which an order for enforcement inafter referred to as 'the husband'), went to had been granted. The husband brought live in the Netherlands. His wife, Mrs Krieg interlocutory proceedings and the (hereinafter referred to as 'the wife'), also a attachment of earnings order was German national, remained in the Federal discharged by the President of the Arrondis­ Republic of Germany, where, by a judgment sementsrechtbank, Almelo, by an order of 7 of the Amtsgericht (Local Court), Heidel­ July 1983. On an appeal brought against berg of 21 August 1979, she obtained a that decision by the wife, the Gerechtshof maintenance order as a separated spouse. (Regional Court of Appeal), Arnhem, quashed it by a judgment of 24 September 3. An order for the enforcement of that 1984, which was the subject of an appeal in judgment was granted pursuant to the cassation. Convention on 29 July 1981 by the President of the Arrondissementsrechtbank (District Court), Almelo (Netherlands), and 7. It is in those proceedings that the Hoge was served on the husband on 29 April Raad has submitted five questions to this 1982. He did not appeal against that order. Court. In examining them I shall be following a slightly different order from 4. On 1 May 1980, the Arrondissement­ that chosen by the Netherlands court. It has srechtbank, Maastricht, dissolved the asked the Court, first, two questions marriage on application by the husband, the relating to the effects of a judgment which wife not having entered an appearance. The has been recognized, then a question on decree of divorce was entered in the Civil whether it is possible to plead grounds for Register in The Hague on 19 August 1980. refusing recognition or enforcement, and The divorce, which does not fall within the lastly two questions on the remedies scope of application of the Convention, has available in proceedings subsequent to the not yet been recognized by the German order for enforcement. The procedural authorities. 1 order, however, is the following:

(b) the order for enforcement, granted paragraph (3) of Article 27 with paragraph according to the rules laid down in the (5), which requires recognition to be refused Convention; where the judgment is irreconcilable with a judgment given in a non-Contracting State (c) execution proper, which is governed by involving the same cause of action and the rules of national law as the Court between the same parties, which are the confirmed in its judgment in Deutsche traditional criteria for res judicata. What, Genossenschaftsbank. 2 then, are the characteristic elements of irreconcilability for the purposes of Article I shall therefore be examining first the 27 (3)? circumstances in which it is possible to plead grounds for refusing recognition or an 10. Any approach based on the substantive order for enforcement (I) before going on content of judgments runs the risk of to try to ascertain the effect of a judgment leading to an unduly restrictive result. For which has been recognized (II). Lastly I example, two judgments may be based on shall be considering Questions 4 and 5 divergent reasoning without their effects which deal with the issues which may be being irreconcilable. For an example, I need raised in proceedings relating to execution only refer to the case where an appellate (III). court upholds the judgment at first instance on different grounds, that is, on the basis of I — Article 27 of the Convention (Question a different or even diametrically opposed 3 submitted by the Hoge Raad) legal reasoning. 8. I should first of all point out that the second paragraph of Article 34, which deals 11. In my view irreconcilability should with the refusal of enforcement, refers therefore be sought at the level of the legal expressly to the five grounds for effects which recognition of the judgment non-recognition provided for in Article 27. would produce in the State of enforcement. The Hoge Raad is asking the Court to More specifically, the question to be determine whether two of them, namely determined is whether the combined effects irreconcilability (subheading A below) and of the two judgments would lead to a public policy (subheading B), are applicable contradiction incompatible with the logical in the main proceedings. For the time being, consistency of the legal order of the State in let me simply say that in this instance those which enforcement is sought. grounds were raised at a procedural stage where an order for enforcement had already 12. A few examples, some fictitious and been granted and the appeal provided for by some taken from the judgments of national the Convention had not been exercised. courts, will serve as illustrations of the solution which I am proposing. Thus a A — Irreconcilable judgments judgment ordering performance of a contract is clearly irreconcilable with a 9. Article 27 (3) provides that a judgment is judgment declaring the contract invalid. 3

16. Under the terms of Article 27 (1), a 14. In this instance the German main­ judgment is not to be recognized if it is tenance order logically presupposed that the contrary to public policy. I do not think it parties were married and that legal situation necessary to suggest a reply on the was terminated by the subsequent application of that provision to this case; Netherlands judgment. The dissolution of clearly it is for the national courts alone to the marriage takes effect only for the future define the scope of public policy. and cannot call into question the automatic recognition enjoyed by the German order in the Netherlands as soon as it has become 17. Thus I shall confine myself to making effective in the Federal Republic of two general remarks with regard to Article Germany. The fact that that order was prior 27 (1): to the decree of divorce establishes that there was indeed a period during which the husband was liable to pay maintenance. In (a) within the scheme of the Convention, that regard the situation is no different from that clause is intended to apply only in 6 that under national law where a husband is exceptional cases, which will be all the ordered to pay maintenance and then rarer in that from a statistical point of obtains a divorce. The ex-husband clearly view judgments in property matters are cannot rely on the decree of divorce as a unlikely to raise issues of public policy; ground for refusing the payment of main­ tenance for the period separating the two (b) it should be specified that the meaning judgments. of that provision is that the question is not whether a judgment is itself contrary to public policy but whether its recognition or an order for its 15. I shall therefore take it to be an enforcement would have that effect. essential factor in favour of reconcilability That is an application of the doctrine that there was a period prior to the divorce known as the 'diluted effect of public when the maintenance could be enforced; as polic' , 7according to which a national a result the ground set out in Article 27 (3) can be held inapplicable and an order for 6 — See Jenard Report, ibid, at p. 44; M. Weser, Convention enforcement granted. The abstract approach communautaire sur la compétence judiciaire d'exécution des décisions, Centre international de droit compare, Brussels, 1975, p. 330. 5 — French Cour de cassation, judgment of 3 November 1977 7 — Gothot and Holleaux, La Convention de Bruxelles du 27 Sofraco v Pluimvee, Digest, D Series, I-27.3 — B 1. septembre 1968, Paris, 1985, No 256, p. 146.

II — The effects of a judgment which has been recognized (Questions 1 and 2 21. I shall now try to ascertain the conse submitted by the Hoge Raad) quences of the approach which has been advocated in situations analogous to that in 18. In so far as they ask for a ruling on the the main proceedings. First of all, it cannot scope of a judgment which has been be for the court before which enforcement recognized, I shall be examining the first is sought to determine the practical effects two questions jointly. of a judgment which has been recognized; it must confine itself to authorizing or refusing its enforcement. The power to

20. As G. A. L. Droz points out, 8 the quences of the authorization of enforcement Convention is silent on that point. The previously granted in the court where Jenard Report explains : 9'Recognition must enforcement was sought. In my view that have the result of conferring on judgments approach is dictated by the need to avoid the authority and effectiveness accorded to extensive application of Article 42, which them in the State in which they were given' ; would present the obvious risk of a review

OPINION OF MR DARMON — CASE 145/86

23. According to the scheme of the any national judgment. It would be no Convention, recognition and the order for different in the case of two national enforcement of a judgment have the effect enforceable instruments. If I may use a of transposing the effects of that judgment metaphor: where the Convention is into the legal system of other Contracting intended to ensure the 'free movement of States. This does not of itself enable the judgments', my analysis, mutatis mutandis, is legal system of the State of origin to take the expression of the rule of 'national precedence over that of the State of treatment'. execution by subjecting the execution of judgments given in the latter State within its own territory to the requirement of prior III — Objection to execution (Questions 4 recognition in the legal system of the and 5 submitted by the Hoge Raad)

24. I am therefore unable to share the Article 36 of the Convention? approach taken by the Commission, which would in practice make the legal effec tiveness of a Netherlands decree of divorce 17. The appeal provided for by Article 36 in the Netherlands dependent on its recog must be brought, according to the circum nition in the Federal Republic of Germany. stances, within one or two months from It is not a question of recognizing the service of the order authorizing divorce in that State but simply of drawing enforcement. The appeal must be lodged the necessary conclusions in the with a court specified in Article 37 for each Netherlands where it was granted. Contracting State. The judgment given on Accordingly, the maintenance order must, the appeal may be contested only by the like an analogous Netherlands judgment, be procedure laid down for each State by the taken in conjunction in the State where second paragraph of Article 37. Lastly, in execution is sought with the effects any event it is only the grounds set out in following from the divorce. Article 27 that may be adduced. Indeed the issue in this case is precisely whether it is

HOFFMANN v KRIEG

29. In its judgment in Brennero, the Court the Convention and national law. The stated : former deals with recognition and orders for enforcement by laying down an 'The second paragraph of Article 37 exhaustive list of the rights of appeal which provides that the judgment given on the are available. Execution is governed solely appeal may be contested only by an appeal by the latter. The logic of that framework in cassation . . . Under the general scheme of precludes the possibility of lifting a the Convention, and in the light of one of particular ground of appeal out of the its principal objectives which is to simplify Convention and using it outside the scheme procedures in the State in which of its provisions. The system of the enforcement is sought, that provision cannot Convention necessarily means that any such be extended so as to enable an appeal in 'transplant' would be rejected. cassation to be lodged against a judgment

OPINION OF MR DARMON — CASE 145/86

37 . Even though I have thought it necessary to examine all the questions submitted to the Court , I propose that in its reply to the Hoge Raad the Court address only the issues of law relevant to the determination of the main proceedings . In view of the fact that the proceedings before the Hoge Raad relate to execution , the questions of recognition and enforcement already being defini­ tively settled, I propose that the Court rule as follows :

17 — Cited above, at paragraph 18 of the decision. 18 — See in particular Droz, op. cit., Nos 426 et seq., p. 264. 20 — Case 42/76 de Wolf Cox [1976] ECR 1759. 19 — Cited above, at p. 656, Official Journal [1979] C 59. 21 — Cited above, at p. 656.

HOFFMANN v KRIEG