C-172/91

SONNTAG v WAIDMANN

OPINION OF ADVOCATE GENERAL DARMON delivered on 2 December 1992

Mr President, order to obtain, before the Bolzano court, Members of the Court, compensation for both pain and suffering and material damage.

1. By means of the questions it has referred 5. O n 25 January 1988, at the criminal trial, to the Court, the Bundesgerichtshof (Federal when Mr Sonntag was legally represented, Court of Justice) asks the Court to rule on the civil parties lodged claims in order to the interpretation of the first sentence of obtain a provisionally enforceable payment Article 1, Article 27(2) and the second para- on account of LIT 20 million together with graph of Article 37 of the Brussels Conven- costs. tion of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the 1978 Accession Convention, ' hereinafter the 6. According to a judgment given on the 'Convention'. same day, Mr Sonntag was found guilty of causing death by negligence and ordered to make the provisionally enforceable payment claimed. 2. The facts which give rise to the main pro- ceedings are as follows. 7. The judgment was served on Mr Sonntag and, in the absence of an appeal, became 3. Thomas Waidmann, a pupil in a school final. administered by the Land Baden- Württemberg, suffered a fatal fall on 8 June 1984 during a school visit to Italy. The 8. O n 29 September 1989, upon application accompanying teacher, Mr Volker Sonntag, a by the parties seeking enforcement, the German civil servant, was prosecuted by the Landgericht (Regional Court) Ellwangen Italian authorities before the Bolzano crimi- made an order for the enforcement of the nal court, for causing death by negligence. civil provisions of that judgment.

10. The Oberlandesgericht (Higher Regional be regarded as having duly appeared Court) dismissed the appeal, taking the view within the meaning of Article 27(2) that the judgment of the Bolzano court con- where, at the trial on the substance of the cerned a civil matter within the meaning of case, and through his counsel, he the first sentence of Article 1 of the Conven- answered to the criminal charges but did tion. not express a view on the civil claim, on which oral argument was submitted in 11. Mr Sonntag and the Land Baden- the presence of his counsel. Württemberg appealed to the Bundesgerich- tshof on a point of law on the basis of the second paragraph of Article 37 of the Con- vention; that court has submitted four ques- 12. It is necessary as a matter of priority to tions for a preliminary ruling, which are set determine the nature of the action brought out in the Report for the Hearing 2 and by the victim's family before the criminal which essentially ask the Court to state: court against an agent of the State. Whether or not the Convention may apply to the — whether the right of appeal provided for facts in issue depends on the answer to that in the second paragraph of Article 37 of question. I shall therefore begin with the sec- the Convention may be exercised by an ond question. interested third party where the domestic law of the State in which enforcement is sought allows such a party to contest the 13. By virtue of Article 1, the Convention is judgment in question; to apply in civil matters 'whatever the nature — whether the expression 'civil matters' in of the court or tribunal'. It follows that the the first sentence of Article 1 of the Con- nature of the court or tribunal cannot serve vention includes an action for damages as a criterion and that the scope of the Con- against a public official who, in breach of vention includes the civil provisions of a the duties with which he was entrusted, judgment delivered by a criminal court. has caused injury to another person, and whether this is so even where cover is provided under a social insurance scheme 14. Even though it is joined to criminal pro- governed by public law; ceedings, a civil action for compensation for damage caused by a criminal offence loses — whether a procedural document which none of its civil character. Consequently, a informs the defendant of the existence of judgment given by a criminal court can be a claim for damages but without specify- recognized and enforced in the territory of ing the amount claimed is to be regarded the other Contracting States as regards its as a 'document which instituted the pro- civil provisions. ceedings' within the meaning of Article 27(2) of the Convention;

20. Whilst it is rare in a bilateral context to 16. That is also apparent from Article 5(4) of draw up an exhaustive list of matters coming the Convention, which provides that: under civil or commercial law, such an approach is even less conceivable in the wider context formed by the corpus of the signatory States, owing to the diversity of 'A person domiciled in a Contracting State their legal systems. may, in another Contracting State, be sued: ... as regards a civil claim for damages or res­ titution which is based on an act giving rise to criminal proceedings, in the court seised 21. The special nature of the Convention, of those proceedings, to the extent that that however, is the result of its link with the court has jurisdiction under its own law to E E C Treaty, which must also make it possi­ entertain civil proceedings.' ble to establish 'closer relations between the States belonging to [the Community]'. 5

17. But are the rules on jurisdiction the same 22. In order to achieve a uniform application where the person responsible for the damage of the rules on jurisdiction in the Contract­ is, like Mr Sonntag, the 'holder of a public ing States and, in doing so, to maintain cohe­ office'? D o the proceedings still relate to sion in the interpretation of the law, it is 'civil matters'? O r do they concern 'adminis­ therefore necessary to develop an indepen­ trative matters', which are precluded by dent definition of the matters falling within Article 1 of the Convention? the sphere of private law. In that respect, the case-law of the Court has certainly been extremely innovative. 18. That article sets out a positive and nega­ tive definition of the substantive scope of the Convention: 23. It was in that sense that the Court stated in its judgment in ĽTU v Eurocontrol 6that:

27. Therefore, unlike the German Govern- Having laid down this principle of interpre- ment, I do not believe that it is sufficient to tation, the Court went on to apply it in these consider the classification of the dispute only terms: from the viewpoint of domestic law. O n the contrary, it is essential to derive from the legal systems of all the signatory States a general principle for determining whether 'Although certain judgments given in actions such proceedings constitute a 'civil matter'. between a public authority and a person governed by private law may fall within the area of application of the Convention, this is 28. It should be observed at once that the not so where the public authority acts in the law of the common law countries rarely exercise of its powers.' 9 allows the victim to take part in proceedings before the criminal courts. In those courts the victim does not take part in the proceed- ings as the 'civil party' even when a compen- 24. This approach to the interpretation of sation order is sought. In order to obtain the concept of civil matters within the mean- compensation for the damage suffered he ing of the Convention was restated and must bring proceedings before the civil explained in the NetherLands v Rüffer judg- courts and the author of the damage will be ment, 10 the facts of which merit a brief judged in accordance with the rules of civil description. law. The concept of administrative law does not, moreover, apply in those countries. 13

7 — Point 3. 8 — Point 4, first paragraph. 11 — Paragraphs 9 and 10. 9 — Point 4, second paragraph. 12 — Paragraph 11. 10 — Case 814/79 [1980] ECR 3807. 13 — See the Schlosser Report (OJ 1979 C 59, p. 82).

29. With regard to the Continental legal sys- whether the claim tor damages is made tems, the fact that criminal proceedings are against the official or the State. 18 brought against the holder of a public office may, it is true, affect the conditions for bringing a civil action, and even call in ques- 34. In Portugal the State is jointly and sever- tion the expedience of bringing such an ally liable, and although acts to which public action against the official, but in general has law applies come within the jurisdiction of no effect on the characterization of the pro- the administrative courts, acts of the State in ceedings on the substance of the case. connection with private administration must be sought before the ordinary courts. 19 However, even in the case of acts of public 30. Accordingly, in Denmark a civil claim in administration the victim may, where there criminal proceedings can be pursued only has been a criminal offence, seek reparation against the person who actually caused the from the official alone by making a civil injury. 14 The claim for damages will be pur- claim which will fall to be examined by the sued against the public employer in the civil criminal courts. courts and the proceedings retain their civil character. 15 35. In the Netherlands the victim may obtain reparation exclusively from the State 31. In Spain a person who has committed a in certain cases 20 and/or against the official; criminal offence may be sued in the civil or the liability of the authorities and/or the criminal courts. 16 Where the person con- official is determined in accordance with the cerned is an official the same rules apply, but rules of civil law. the vicarious liability of the State may be invoked before the same courts. 17 36. In France a special system 21 applies to offenses committed by members of the pub- 32. In Belgium a civil claim against an offi- lic education system, in which State Lability cial and against the State is governed exclus- is substituted for that of the official. In the ively by civil law and is heard by the ordi- event of personal fault on the part of the nary courts. official or a fault committed in the course of his duties, the victim can bring proceedings in the ordinary courts, which apply the rules of the Civil Code; the criminal courts are not 33. The same applies in Italy, where the lia- excluded, 22 and where appropriate the civil bility of the State may be incurred if the offi- claim against the State is joined to the crim- cial has committed the offence in the perfor- inal proceedings against the official. 23 mance of his duties. The action brought by the victim retains its the civil-law character

37. In Luxembourg the Constitution does 39. In Greek law, on the other hand, an not allow proceedings having civil rights as action of this type must be brought against their subject-matter to be removed from the the official and the State and liability is a civil courts. Proceedings are rarely brought matter of public law. against a teacher because the loss is covered by compulsory accident insurance, and the victim can take action only in the event of intentional fault by the person responsible. 40. Examination of the various national laws Notwithstanding that insurance, liability is therefore shows that the liability of the State predominantly civil in nature. and/or of the official is, in almost all of those laws, either of a purely civil nature or of a predominantly private-law nature. There are, however, some special features regarding the circumstances giving rise to and the form of the liability, which may be either excluded or exclusive, or vicarious or joint and several, 38. In Germany, before the introduction of none of this, however, entailing any change Article 34 of the Basic Law, the victim had to in the nature of the action. make a claim (Paragraph 839 of the BGB) against the official in the civil courts, which applied the rules of civil liability. 2 5 Since that liability was considered particularly onerous, 41. Those, then, are the general principles the State itself now assumes sole responsibil­ emerging from the legal systems of the vari­ ity for reparation for damage such as that ous Contracting States. An action of the type referred to by the national court, but may, in in point in this case must therefore be the event of serious fault, bring recourse pro­ regarded as a civil matter within the meaning ceedings against its official. Academic writing of Article 1 of the Convention. is divided as regards how such an action is to be characterized: some writers consider that it is of a civil nature, 2 6 while others take the view that it is of a public nature. 2 7 By a Law 42. Let us now turn to the nature of this of 26 June 1981, the State intended to repeal action where the accident, like the one to Paragraph 839 and introduce Lability in pub­ which the national court refers, is covered by lic law. However, that law was declared a social insurance scheme governed by public unconstitutional by the Bundesverfassungs­ law. Can the existence of such a scheme have gericht (Federal Constitutional Court). the effect of altering the original classifica­ Although the nature of the victim's claim tion of the action? against the State is uncertain, the ordinary courts none the less have sole jurisdiction and apply the rules of civil law. 43. It follows from the judgments in ĽTU v Eurocontrol and Netherlands v Rüffer, cited above, that proceedings do not fall within 24 — Article 84 of the Constitution of 17 October 1868. the scope of the Convention: 25 — Bundesgerichtshof, 20 March 1961, BGHZ 34, p. 375, at 380. 26 — Bartlsperger Die Folgen von Staatsunrecht als Gegenstand der Gesetzgebung in Neue Juristische Wochenschrift, 1968, p. 1697 at 1701. — if their subject-matter is an act of a public 27 — Bettermann, annotation under Bundesgerichtshof of 10 April 1961 in Monatsschrift für Deutsches Recht, 1961, p. authority acting in the exercise of public 837. powers;

46. The Convention does, moreover, refer to such disputes: it covers proceedings con- 49. I am therefore unable to subscribe to the cerned with designs, trade marks and patents German Government's assertion that dam- which may be brought by a public authority ages claimed from the State arising from owning intellectual property against a private 'breach of a public-service obligation' 30 nec- person (Article 16). essarily come under the heading of adminis- trative matters. 47. Furthermore, the fact that the adminis- trative courts have jurisdiction is not suffi- cient to preclude proceedings before them from the scope of the Convention. The 50. That concept of 'public service' is French and Belgian Conseils d'État and the undoubtedly recognized in a number of Bundesverwaltungsgericht, among other national legal systems, but, in the interest of courts, are empowered under Article 2 of the maintaining uniformity in the law emanating Protocol on the interpretation of the Con- from the Convention, cannot prevail for the vention by the Court of Justice to request purposes an independent classification of the Court to give preliminary rulings on administrative matters. questions of interpretation. 28

29 — OJ 1979 C 59, p. 83. 28 — See in that respect paragraph 14 of the Rüffer judgment, 30 — Observations of the German Government, p. 7 of the cited above. French translation.

I - 1983

O P I N I O N O F MR D A R M O N — CASE C-172/91

51. As the case-law of the Court makes the principal objective of the Convention is clear, disputes between a private person and to simplify enforcement procedures: a public person not acting in the exercise of public powers fall within the scope of the Convention, no matter what classification is given to such disputes in national law. 'In order to attain that objective the Conven- tion established an enforcement procedure which constitutes an autonomous and com- 52. A claim against a servant of a signatory plete system, including the matter of State must therefore come within the scope appeals'. 32 of the Convention when the acts in question do not entail the exercise of public powers.

I - 1984

SONNTAG v WAIDMANN

'Under the general scheme of the Conven- 66. That protection will be fully guaranteed tion, and in the light of one of its principal by the national law of each State, not at the objectives which is to simplify procedures in stage of the decision authorizing enforce- the State in which enforcement is sought, ment but at the stage of actual enforcement, that provision cannot be extended so as to which does not come within the Conven- enable an appeal in cassation to be lodged tion. 37 against a judgment other than that given on the appeal'.

67. As we know, the Convention applies only to proceedings whereby a decision (or 62. The Court also expressly stated in the an authentic instrument) issued in a Con- judgment in van Dalfsen v van Loon 35 that tracting State can be made enforceable in the second paragraph of Article 37 must be another Contracting State; on the other narrowly construed. hand, it leaves the detailed rules regarding execution of the enforcement order to the jurisdiction of the domestic legal orders of 63. As may be seen from the Court's inter- the signatory States. pretation of Article 36, that provision

68. The last two questions concern the rules 'excludes procedures whereby interested relating to the principle of respect for the third parties may challenge an enforcement rights of defence in Article 27(2) and give the order under domestic law'. 36 Court its first opportunity to consider the relevance and, possibly, the scope of that provision in a situation where the defendant Similarly, a third party cannot be allowed to is not in default of appearance. appeal under the second paragraph of Article 37. 69. Allow me briefly to mention the logic of the system underlying the Brussels Conven- 64. It is to that effect that I propose that the tion. Court answer the first question.

74. It is also appropriate to refer to Article 71. The principle of the recognition of judg- 46, under which a party seeking recognition ments is based on the Member States' mutual or applying for enforcement of a judgment is trust in their respective legal systems and to produce the original or a certified copy of judicial institutions. 38 the document which establishes that the party in default was served with the docu- ment instituting the proceedings. 72. This trust allows the Member States to waive their internal rules on the recognition and enforcement of foreign judgments. This 75. Article 27(2) provides that 'a judgment prerequisite must remain unassailable, which shall not be recognized ... if the defendant explains why, for proceedings within the was not duly served with the document scope of the Convention, review of the legal- which instituted the proceedings or with an ity of the foreign decision is confined to: equivalent document in sufficient time to enable him to arrange for his defence'.

— public policy: Article 27(1); 76. Therefore the series of provisions designed to protect the rights of the defence is fundamentally concerned solely with — the rights of the defence: Article 27(2); defendants in default of appearance. and

77. Furthermore, the Jenard Report, it — whether the judgment is irreconcilable should be noted, refers to such protection with another judgment: Article 27(3). only in relation to this category of defen- dants. 39

preliminary ruling on Article 27(2), that 83. If a defendant who has appeared were provision has never been relied upon in able to rely on that provision, then the court favour of a defendant who is not in default of the State in which enforcement is sought of appearance. would be empowered to review the finding, already made, after an inter partes hearing, by the court of the State in which the judg- 80. It certainly seems to follow from the ment was given, that the proceedings before judgment of the Court in Klomps v Michel 40 it were in no way defective. that only the capacity of 'defendant in default of appearance' can justify the applica- 84. It cannot in such circumstances be per- bility of Article 27(2). The Court stated that missible to review the questions whether the that provision notice to appear was in order or served in sufficient time for the party concerned to arrange for his defence. The defendant, or his 'is intended to ensure that a judgment is not counsel, had the opportunity before that recognized or enforced under the Conven- court to object that the document instituting tion if the defendant has not had an opportu- the proceedings was defective and to submit nity of defending himself before the court defence arguments going both to admissibil- first seised'. 41 ity and the merits. He was also in a position to make use of the legal remedies available to 81. That objective of protecting a defendant him if the decision appeared unfavourable to in default of appearance was repeated in the him. Minalmet judgment, 42 according to which 85. That, moreover, is the position adopted by Messrs Gothot and Holleaux, among oth- 'Article 27, point 2, of the Brussels Conven- ers, who express themselves as follows: tion is intended to protect the rights of the defence and to ensure that a judgment is not recognized or enforced under the Conven- 'The question whether the proceedings tion if the defendant has not had an oppor- before the court first seised were defective tunity of defending himself before the court may be reviewed only in the case of the rec- first seised'. 43 ognition and enforcement of judgments given in default ... It is therefore only when the court before which enforcement is 82. In order to be applicable, Article 27(2) sought is faced with a judgment given fol- necessarily implies, in my view, that the lowing proceedings of an inter partes nature defendant is in default of appearance, and before the court first seised, but in which the must have been found to be so by the court defendant was in default of appearance, that of the State where the proceedings were first it is necessary to verify whether the docu- brought; I shall attempt to define 'in default' ment which instituted the proceedings or an below, in relation to the final question equivalent document was served or notified referred by the Bundesgerichtshof. in proper form and in sufficient time to enable the defendant to arrange for his defence.' 44

89. That is the subject-matter of the fourth and final question. The reply ... should therefore be that Article 27, point 2, remains applicable where the defendant has lodged an objection against 90. Article 27, point 2, does not define what the decision given in default and a court of is meant by 'default of appearance'. the State in which the judgment was given has held the objection to be inadmissible on the ground that the time for lodging an 91. Must that term be defined independently objection has expired.' 46 or with reference to the domestic law of the State in which the judgment was given?

95. The Court therefore considered that it 92. It would appear that, since that concept was the defendant's default, as determined depends on the assessment made by the by the court of the State in which the judg- court first seised under its domestic law, it ment was given, that enabled the court in must be interpreted by reference to that law. which enforcement was sought to apply Article 27(2).

45 — Droz: Compétence judiciaire et effets des jugements dans le marché commun, Dal loz, p. 315, No 501. 46 — Paragraphs 12 and 13, emphasis added.

I -1988

SONNTAG v WAIDMANN

(2) Article 37(2) of the Convention precludes any appeal by interested third par- ties against a judgment given in pursuance of Article 36 of the Convention even though such a remedy is available to those third parties under the law of the State in which enforcement is sought.

(3) Article 27(2) of the Convention is not applicable where the defendant was not in default of appearance in the proceedings before the court first seised; the concept of default of appearance is to be assessed according to the law of the State in which the judgment was given.

47 — Case C-305/88 [1990] ECR I-2725. 49 — See Huet, André: Journal de droit international privé, Clu- 48 — Paragraph 29, emphasis added. net, 1981, p. 893.

I - 1989