C-261/90

The German couple, Mr and Mrs Reichert, residing in Germany, donated to their son, also resident in Germany, at a time when they are stated to have had a considerable That question was answered by the Court in debt to the Dresdner Bank, the legal the judgment in Case C-l 15/88 (hereinafter ownership of a flat in France. They reserved referred to as 'the Reichert /judgment'), in to themselves the right of use of the which the Court ruled as follows: property.

The Dresdner Bank challenged the donation by bringing an action before the Tribunal de 'An action whereby a creditor seeks to have a disposition of a right in rem in immovable * Original language: Danish. property rendered ineffective as against him 1 — [1990] ECR 1-27. on the ground that it was made in fraud of

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his rights by his debtor does not come Before I proceed to answer the question within the scope of Article 16(1) of the about the interpretation of the three Convention.' relevant provisions of the Brussels Convention I shall make some brief remarks, partly about the problems facing the Dresdner Bank in pursuing its application to have the transaction set aside and partly about the specific rules for such Before the Court had delivered its an action, known in French law as an judgment, the Dresdner Bank — no doubt 'action paulienne' (actio pauliana). in the light of the observations submitted in the Reichert I case — had requested the Cour d'Appel d'Aix-en-Provence to refer a further question to the Court of Justice for a preliminary ruling. The Cour d'Appel agreed to that request and has referred the The grounds on which the Dresdner Bank following question to the Court: bases its action

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either that German law would be regarded I cannot deny that I have a certain as applicable or that a German court would sympathy for the bank's wish for help in require that the conditions of both German solving the problems it has had in obtaining and French law for the revocation of the a decision that Mr and Mrs Reichert's transaction must be met because it donation to their son may be revoked on concerned a property situated in France. It the ground that it was made in order to is less likely that the German rules on the restrict their creditors' opportunities of choice of legislation would result in French obtaining satisfaction. I also understand to a law being taken as the basis. It seems to certain extent that at first sight there are emerge from this case that a German court's arguments for regarding an application for rules for setting a transaction aside are revocation of the donation of a property different from the French rules and that it situated in France as being most appro­ may be more difficult to secure such an priately determined by a French court outcome under German than under French according to French law. But the arguments rules. in favour of such an outcome are primarily relevant to an interpretation of Article 16(1) of the Brussels Convention. In the Reichert I case the Court ruled, correctly in my view, that the arguments were not sufficient to make it possible to interpret Article 16(1) in the sense desired by the Dresdner Bank. It is The Dresdner Bank also claims that there doubtful whether the fact that the action may be a risk that a French court will refuse concerns immovable property is by itself on the basis of French public policy to significant as regards the rules on juris­ recognize and enforce a German judgment diction which are relevant in this case. of revocation relating to a property situated in France.

As I have said, the Dresdner Bank bases its action on Article 1167 of the French Code Civil, according to which creditors 'may — the action is based on allegedly challenge in their own name transactions deliberate illegal conduct on the part of entered into by their debtors in fraud of the debtor, but by its nature must be their rights'. The question in this case is directed against the third person who therefore whether one or more of the has acquired rights over the property articles of the Brussels Convention concerned, or both against him and the mentioned in the question referred to the debtor; Court cover an action for revocation such as the action paulienne under French law. That action was discussed in detail in the Reichert I case. 2 The doubt which apparently still exists in French law on this specific action is — in the case of a donation between the hardly of decisive importance for the debtor and a third person, the creditor is Court's decision. In the Reichert I case the not required to show that the transferee Court emphasized the following charac­ has acted in bad faith, but must do so if teristics of the action: the transaction is not a donation;

— the creditor must show that he had a 'The action paulienne ... is based on the claim on the debtor before the trans­ creditor's personal claim against the debtor action, but it is not necessary for the and seeks to protect whatever security he claim to have fallen due; may have over the debtor's estate. If successful, its effect is to render the trans­ action whereby the debtor has effected a disposition in fraud of the creditor's rights ineffective as against the creditor alone ... ' — the action is not dependent on the 2 — Sec the Commission's written observations of 28 June nature of the property which has been 1988 (points 10 and 12) and the French Government's observations of ! July 1988 (point 8). transferred.

The Dresdner Bank claims that that provision must not be restrictively inter­ preted and that it may cover a revocatory Clearly it should be accepted that courts in action such as the action paulienne because the State in which the judgment has been or the purpose of the action to set the trans­ is to be enforced have exclusive jurisdiction action aside is to prepare for enforcement of under Article 16(5) of the Convention only the creditor's claim to the property in in cases directly connected with the question. enforcement of judicial decisions already taken or with other enforceable instruments. An action for the revocation of a trans­ action, such as the action paulienne does not That interpretation cannot be accepted. concern the enforcement of a judgment Neither the wording of the provision, the already delivered or any other enforceable preparatory documents nor the points of instrument, nor is it an action arising in view adopted academic writers may be connection therewith. The object of an regarded as supporting such a wide inter­ action paulienne is, as the Commission pretation. 3 The Court has emphasized on states, to obtain a material alteration of the 3 — The Court has taken a decision on the interpretation of Article 16(5) in only one judgment (Case 220/84 4 — Mr P. Jenard's Report on the Convention on Jurisdiction AS- Autoteile Servicev Malhe [1985] ECR 2267), which is and the Enforcement of Judgments in Civil and of no relevance to this case. Commercial Matters (OJ 1979 C 59, pp. 1 to 65).

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This interpretation of Article 24 must be accepted even though it appears from the It may be seen both from the position of the Jenard Report that 'as regards the measures article and from its wording, as well as from which may be taken, reference should be the preparatory documents, that it has a made to the internal law of the country limited purpose, namely to preserve the concerned', and even though, from certain opportunity for each Member State to points of view, it may perhaps be reasonable continue to apply its existing rules of juris­ to emphasize the protective nature of a diction as regards the adoption of revocatory action such as the action provisional measures such as, for example, paulienne. 7 Article 24, according to its attachment or injunction. That may be the case irrespective of whether the court having 6 — In this connection see the judgments in Case 143/78 De jurisdiction as to the substance of the matter Cavel v De Cavei [1979] ECR 1055 and in Casc 25/81 C. H. W. v G. J. H. [1982] ECR 1189, interpreting Article under the provisions of the Convention is 24, where, in paragraphs 9 and 12 respectively, the Court that of another Member State. 5 emphasizes that that provision relates to cases in which a court of another Contacting State has, under the Convention, jurisdiction as to the substance of the matter. 5 — In that connection the Jenartl Report states as follows: 7 — It is irrelevant, for example, in relation to Article 24, that Article 24 provides that application may he made to the certain French writers, as mentioned by the Commission in courts of a Contracting State for such provisional the Reichen I case, accept that the action paulienne is a measures, including protective measures, as may be protective remedy since it is a preparation for subsequent available under the internal law of that State, irrespective possibilities of enforcement by preventing the alienation of of which court has jurisdiction as to the substance of the assets which may be involved Nor can importance be case. A corresponding provision will be found in nearly all attached in this respect to the fact that in paragraph 12 of the enforcement conventions. the Reichert I judgment the Court stated that the creditor's in each State, application may therefore be made to the action seeks to protect whatever security he may have over competent courts for provisional or protective measures to the debtor's estate (emphasis added) or that the Cour be imposed or suspended, or for rulings on the validity of d'Appel d'Aix-en-Provence, in its reference for a such measures, without regard to the rules of jurisdiction preliminary ruling, asked the Court to take into laid down in the Convention. consideration the existence of protective measures which As regards the measures which may be taken, reference the decision on the substance of the case is intended to should be made to the internal law of the country make it possible to enforce against the property which is concerned. the subject of the rights in rem transferred by the debtor.

' ... having regard to the objectives and general scheme of the Convention, it is important that, in order to ensure as far as It is not an easy matter to determine possible the equality and uniformity of the whether an action such as the action rights and obligations arising out of the paulienne for the setting aside of a trans­ Convention for the Contracting States and action is covered by Article 5(3). the persons concerned, that concept should not be interpreted simply as referring to the national law of one or other of the States 10 concerned' (paragraph 15). The Court's case-law makes a useful contri­ bution to an interpretation, but in my view 8 — Schlosser does not regard the action as covered by Article 5(3), IPRax 1/91, pp. 29 and 30. Tagaras expresses the nothing which may clearly be regarded as contrary view in Cahiers de droit européen, 1990, providing a certain answer to the question. pp. 658 and 687.

Nor can the wording of the provision be 9 — [1988] ECR 5565. 10 — I refer, for a further statement of the reason for which considered to provide a clear answer, in Article 5(3) should be interpreted independently, to particular because there are considerable Mr Advocate General Darmon's Opinion in that case, referring to Mr Advocate General Warner's Opinion in differences between the various linguistic Case 814/79 Reffer [1980] ECR 3807 at p. 3834 et seq..

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REICHERT AND KOCKLER v DRESDNER BANK

In the same judgment the Court stated that The wording of the provision gives rise to problems of interpretation, inter alia because the various linguistic versions, each of which is authentic, differ to some extent from one ' ... the "special jurisdictions" enumerated another. in Article 5 and 6 of the Convention constitute derogations from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled and I think it may be appropriate to quote the as such must be interpreted restrictively provision in the various versions. Article 5 (paragraph 19). begins as follows:

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OPINION OF MR GULMANN — CASE C-261/90

waar het schadebrengende feit zich heeft interpret it in the light of its wording in all voorgedaan;' the language versions.

'in matters relating to tort, delict or quasi- In his Opinions in Case 21/76 Bier v Mines 11 delict, in the courts for the place where the de Potasse d'Alsace and Case 814/79 12 harmful event occurred;' Netherlands v Rüffer Mr Advocate General Warner had occasion to scrutinize the various language versions of the provision. In the latter case he stated, inter alia: 'in ábhair a bhaineann le tort, míghníomh nó samhail mhíghnímh, sna cúirteanna don áit inar tharla an teagmhas diobhálach;'

'As, however, emerges from Professor André Tune's Introduction to Volume XI of the International Encyclopedia of 'i sager om erstatning uden for kontrakt, Comparative Law, the volume on "Torts", ved retten på det sted, hvor skadetilffjelsen no-one has ever succeeded, even in the er foregået;' context of any national legal system, in formulating an accurate description of tort that did not beg one or more questions. Like the proverbial elephant, tort is easier to recognize than to define.' 'ως προς ενοχές εξ αδικοπραξίας ή οιονεί αδικοπραξίας ενώπιον του δικαστηρίου του τόπου όπου συνέβη το ζημιογόνο γεγονός; '

case ... no abstract standard should be whose courts a case may in certain circum­ formulated ... ' . stances be brought. 4

On the other hand there may be difficulties I can only agree with that view. An attempt in distinguishing actions which may be to give an abstract and general definition of regarded as actions for compensation the scope of Article 5(3) is risky. covered by either Article 5(1) or 5(3) from those which cannot be regarded as actions for compensation in matters either of contract or of tort, delict or quasi-delict. In such cases the result of the demarcation may be that there is no special jurisdiction for the action in question, which can There is an extensive field in which Article therefore be brought only before the court 5(3) may undoubtedly be used and where its of the State in which the defendant is application will give rise to no problems domiciled. This case concerns a problem of (apart from those which may be involved in that kind. the determination of the place where the harmful event occurred). That field is repre­ sented by the typical actions for damages in which a claimant has suffered economic loss by a tortfeasor's conduct giving rise to The various language versions of Article liability and in which it is clear that there is 5(3) have in any case two features in no contractual link between the parties in common. One is that there must have been relation to the damage. But the provision 'wrongful' conduct, and the other that that gives rise in any event to difficulties of conduct must have caused a 'harmful event'. demarcation in two respects.

However, it should be pointed out that in 'to the tortious, delictual or quasi-delictual the Kalfelis judgment the Court dealt with a nature of the alleged fraud ... '. problem of interpretation other than that relevant in this case. In the Kalfelis judgment the Court considered whether

If the case-law of the Court is examined for aids to interpretation in order to solve the demarcation problem at issue here, the judgment in the Kalfelis case is probably the only one which is directly relevant. The 'in the case of an action based concurrently Court stated: on tortious or delictual liability, breach of contract and unjust enrichment, ... the court having jurisdiction by virtue of Article 5(3) may adjudicate on the action in so far

16 — In the French translation of the judgment the concept is expressed as la responsabilité, and in the English trans­ 'In order to ensure uniformity in all the lation as the liability.

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as it is not based on tort or delict' 'That provision [Article 5(3)] must be inter­ (paragraph 14). preted in the context of the scheme of conferment of jurisdiction which forms the subject-matter of Title II of the Convention.

Thus it was not contested that in the main action the claim for compensation related to matters both of contract and of tort, delict That scheme is based on a general rule, laid or quasi-delict and paragraph 17 of the down by Article 2, that the courts of the Court's judgment, previously cited, State in which the defendant is domiciled therefore hardly had the purpose of laying shall have jurisdiction. down a 'definition' of the sphere of application of Article 5(3) involving a decisive position with regard to the question at issue in this case. I think, in any event, that it would not be right to take the view However, Article 5 makes provision in a that the problem of demarcation at issue number of cases for a special jurisdiction, here can be solved exclusively on the basis which the plaintiff may opt to choose. of the Kalfelis judgment.

This freedom of choice was introduced In my view the question should be examined having regard to the existence, in certain in the light of the purpose and context of clearly defined situations, of a particularly Article 5(3). close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings' (paragraphs 8 to 11).

In any event the case-law of the Court contains two factors of essential importance in this respect. The Court amplified these views in its judgment in Case C-220/88 Dumez France and Tracoba,18in which it stated:

courts other than those of the State of the it is essential, for the interpretation of defendant's domicile, which justifies the Article 5(3) in respect of an action such as attribution of jurisdiction to those courts for the action paulienne for the setting aside of reasons relating to the sound administration a transaction, that it should be possible to of justice and the efficacious conduct of adduce reasons which in general will make proceedings. it appropriate for the applicant to be given the opportunity to bring an action before a court other than that of the State of the defendant's domicile. In order to meet that objective, which is of fundamental importance in a convention which has essentially to promote the recog­ nition and enforcement of judgments in States other than those in which they were delivered, it is necessary to avoid the multi­ plication of courts of competent jurisdiction which would heighten the risk of irrecon­ cilable decisions, this being the reason for which recognition or an order for As the basis for the justification of the rule enforcement is withheld by virtue of Article of jurisdiction laid down in Article 5(3) may 27(3) of the Convention' (paragraphs 17 be regarded as the fact that the court for the and 18). place where the harmful event occurred will typically be the court in which the 'claim for damages' may be best and most easily dealt 19 with, it should be considered whether the When it is considered that: court for the place where the harmful event occurred in an action such as the action paulienne to set a transaction aside has certain special advantages for handling and settling such an action in comparison with — the wording of Article 5(3) does not the court of the State of the defendant's preclude the possibility that an action domicile. In my view it does not. 'The place such as the action paulienne for the where the harmful event occurred' has setting aside of a transaction may be hardly any special significance in deter­ covered by that provision, whereas the mining the factual and legal circumstances judgment in the Kalfelis case may pres­ relevant for settling such an action. In a case umably be regarded as evidence of a such as this the place where the harmful contrary interpretation; event occurred may well be either the place where the instrument of conveyance was drawn up or the place where the property conveyed is situated. But neither of these — the provision is to be interpreted restric- places seems to be of special significance in tively; and deciding whether the conditions for setting the transaction aside are met. The most essential such conditions are those concerning the existence of the debt owed to the creditor and the debtor's intention — in accordance with the case-law of the Court there must be a close connecting factor between the dispute at issue and 19 — Cf. also the reference in the Jenard Report to the fact that the background for this special rule of jurisdiction was the court having jurisdiction, inter alia the frequency of traffic accidents.

If Article 5(3) were applicable in a case such 20 — As previously mentioned, certain arguments may be adduced to tne effect that it is appropriate for proceedings as this, it would presumably follow from the for the setting aside of a transaction involving real property to be instituted before the court in whose judicial judgment in Mines de Potasse d'Alsace that district the property is situated. But those are primarily the applicant could in any case choose to reasons which may justify jurisdiction relating to rights in rem under Article 16(1). Since the Court was unable to bring proceedings decide in favour of such jurisdiction in the Reichert I case, such grounds cannot be regarded as sufficiently compelling to establish jurisdiction under Article 5(3). In this connection it is particularly relevant to refer to paragraph 13 of the judgment, as follows: Finally, although in certain Member States the rules governing the public registration of rights in immovable property require public notice to be given of legal actions seeking to have transactions affecting such rights avoided or declared ineffective as against third parties and of judgments given in such actions, that fact alone is not — either before the court of the place enough to justify conferring exclusive jurisdiction on the courts of the Contracting State in which the property where the instrument of conveyance was affected by those rights is situated. Such rules of national executed (the place where the tort, delict law are based on the need to afford legal protection to the interests of third parties, and such protection can be or quasi-delict was committed — in this ensured, if need be, by public notice in the form and at the case the Tribunal de Grande Instance de place prescribed by the law of the Contracting State in which the property is situated. Sarreguemines, Department of the Moreover it is important that an action such as the action Moselle); or paulienne for the setting aside of a transaction may involve both real and personal property. It is difficult at first sight to imagine that Article 5(3) may be differently interpreted 21 — The Court clarified that interpretation in the judgment in according to whether the revocatory action concerns real Dumez France where it declared that ... the rule on juris­ or personal property. In my view it is clear that it would diction laid down in Article 5(3) ... cannot be interpreted be inappropriate to accept that such proceedings involving as permitting a plaintiff pleading damage which he claims personal property may be instituted according to the rules to be the consequence of the harm suffered by other on jurisdiction contained in Article 5(3), in any case if one persons who were direct victims of the hirmful act to were to accept that the harmful event took place where the bring proceedings against the perpetrator of that act ¡n the personal property happened to be at the time of transfer courts of the place in which he himself ascertained the or the time of institution of proceedings, or both. damage to his assets (paragraph 22).

Conclusion

I shall accordingly propose that the Court should reply to the question referred to it by the Cour d'Appel d'Aix-en-Provence as follows:

'An action such as the action paulienne for the setting aside of a transaction does not fall within the scope of Article 5(3), Article 16(5) or Article 24 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters . '

22 — I shall not discuss the question whether an acceptance of jurisdiction under Article 5(3) in an action to set a trans­ action aside could also lead to an acceptance of the juris­ diction of the court of the State of the applicant's domicile. I shall simply point out that the judgment in Dumez France shows the Court's aversion to solutions which lead to such a result, at any rate in cases in which there is no damage to persons or property.

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