C-398/92

MUND & FESTER v HATREX INTERNATIONAAL TRANSPORT

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 16 December 1993 *

Mr President, behalf of a German principal. Since the Members of the Court, goods were damaged whilst in transit, the German company Mund & Fester, which was subrogated to the principal's rights by virtue of an assignment of a debt, claimed damages. In order to ensure recovery of the 1. By order of 16 November 1992, the debt in question, Mund & Fester applied to Hanseatisches Oberlandesgericht (Higher the Landgericht (Regional Court), Hamburg, Regional Court), Hamburg, asked the Court pursuant to Paragraph 917 of the ZPO, for a whether a provision such as Paragraph 917 seizure order against the lorry — which was (2) of the Zivilprozeßordnung (German still in Germany — used by Hatrex for the Code of Civil Procedure, hereinafter referred transport operation. According to the first to as 'the ZPO'), pursuant to which the fact paragraph of the German provision in ques­ that the judgment to be delivered in due tion, a seizure order may be made where course will have to be enforced abroad is a there is reason to believe that, without such a sufficient ground for authorizing a seizure measure, the enforcement of the judgment order, even if enforcement is to take place in would be made impossible or considerably a country which is a party to the Brussels more difficult; according to the second sub­ Convention on Jurisdiction and the Enforce­ paragraph, the fact that the judgment will ment of Judgments in Civil and Commercial have to be enforced abroad is in itself a suf­ Matters of 27 September 1968, is contrary to ficient reason for granting such a measure. the prohibition of discrimination laid down by Article 7 of the EEC Treaty (which has become Article 6 under the new numbering resulting from the Maastricht Treaty, which entered into force on 1 November 1993).

4. The order for reference must be construed 6. It may be true that the Court has held as meaning that the national court wishes to that limits apply to the application of know whether the provisions of the Brussels national procedural rules since the latter Convention, alone or in conjunction with must not impair the effectiveness of the Con­ Article 7 or other provisions of the EEC vention, in particular the rules on jurisdic­ Treaty, prevent the application of a national tion laid down in it; 2however, it can hardly provision which automatically allows a seiz­ be contended that Paragraph 917 (2) of the ure order to be made, at the request of the ZPO entails that result. interested party, on the sole ground that the judgment will have to be enforced abroad, where the country in question is a Member State, whilst if the judgment is to be enforced within national territory the measure in question can be granted only if there is a risk that enforcement will be made impossible or considerably more difficult. In the first place, it cannot be asserted that that provision is contrary to the Conven­ tion's objective, which is 'to facilitate recog­ nition and to introduce an expeditious pro­ cedure for securing the enforcement of judgments ...', 3since enforcement would in any event be guaranteed by the seizure order and it would therefore be inappropriate to use the machinery provided for by the Con­ vention. Indeed, the latter, as rightly pointed out by the Commission in its observations, is 5. Paragraph 917 (2) of the ZPO is not in not intended to raise to the maximum the fact incompatible with any specific provision number of occasions on which judgments are of the Brussels Convention. Moreover, it enforced in Member States other than those would be difficult to envisage any such in which they were delivered but merely to incompatibility since the provision at issue facilitate their free movement to the greatest does not come within the objective scope of possible extent. the Convention, whose purpose is not to unify procedural rules but to determine which court has jurisdiction in disputes relating to civil and commercial matters in intra-Community relations and to facilitate the enforcement of judgments. 1 In the present case, on the contrary, the court was called on to adopt protective measures, an Secondly, it likewise cannot be affirmed that area not covered by the Convention — Paragraph 917 (2) of the ZPO has an impact Article 24 of it refers, in that connection, to on the rules on jurisdiction laid down by the the national legislation of the countries con­ cerned, and likewise as regards the determi­ nation of jurisdiction. 2 — See Hagen, cited above, in particular paragraph 20; see also the judgments in Case 288/82 Diiimstee [1983] ECR 3663, in particular paragraphs 17 to 19, ana in Case 145/86 Hoffmann [1988] ECR 645, m particular paragraphs 29 to 33. 1 — Sec the judgment in Case C-365/88 Hagen ECR 1845 (in 3 — As stated in the preamble to the Convention, in conformity particular paragraph 17) . with the provisions of Article 220 of the EEC Treaty.

9. In reply to the objection that Article 220 merely sets out a programme or, to use the Court's words, 'is not intended to lay down Article 7 provides that 'Within the scope of a legal rule directly applicable as such, but application of this Treaty, and without preju­ merely defines a number of matters on dice to any special provisions contained which the Member States are to enter into therein, any discrimination on grounds of negotiations with each other "so far as nec­ nationality shall be prohibited'. It will there­ 5 essary"', it can be stated without difficulty fore be necessary to decide first whether the that, in the sphere relevant to this case, those provision at issue concerns a matter gov­ matters are set out by the 1968 Brussels erned by Community law and secondly Convention. It is therefore by virtue of the whether there is inherent in it any discrimi­ Convention that the provisions concerning nation based on nationality. jurisdiction and the simplification of formali-

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OPINION OF MR TESAURO — CASE C-398/92

ties for the recognition and enforcement of application of other criteria of differentia­ judgments now fall within the scope of the tion, lead to the same result'; and in my Treaty. That said, it is clear that — on the view, it is difficult to deny that Para­ basis of the traditional rules governing the graph 917 (2) of the ZPO can be invoked hierarchy of sources of law — neither the only rarely — and in wholly exceptional provisions of the Convention nor the cases — against a German undertaking or national provisions to which they refer, in national and that that provision therefore particular as regards seizure orders, can con­ leads to the same result as discrimination on flict with the rules of the Treaty. grounds of nationality.

12. That finding is not, however, sufficient in 10. I shall therefore move on to consider the itself to demonstrate the existence in this second point, namely whether Paragraph 917 case of discrimination prohibited by (2) of the ZPO involves any discrimination Article 7 of the Treaty. on grounds of nationality which cannot be justified by objective reasons of the kind laid down in the case-law of the Court.

It is necessary to consider whether the pro­ vision at issue may be justified by objective 7 reasons and therefore whether the differing rules laid down for seizure orders, depending 11. No manifest discrimination is apparent on whether a judgment is to be enforced in the provision at issue. Since a seizure inside the country in question or abroad, order is automatically granted in all cases in reflects a genuine difference between the fac­ which the judgment to be delivered in due tual circumstances of the two cases. course has to be enforced abroad, such an order may also be made against a German national who has no assets in Germany of sufficient value for the judgment given against him to be enforced.

as a seizure order. A seizure assures the per­ and problems associated with the need to son in whose favour the measure was secure the recognition of a judgment and an granted of the possibility of securing the order for enforcement in a foreign country, enforcement, in due time, of a judgment to those reasons can no longer be relied on with be delivered subsequently, where there are regard to countries that are signatories to the solid grounds for believing that the debtor Convention. The reduction in the number of may attempt to dispose of the assets which obstacles to the recognition and enforcement might be seized. Whilst, therefore, it is of decisions given in another Contracting appropriate to adopt a provisional measure State and also the simplification of the proced­ of that kind — as is in fact stated in Para­ ures for obtaining an order for enforcement graph 917 (1) of the ZPO — where it is reas­ ensure, within the scope of the Convention, onable to fear, having regard to the circum­ enforcement of judgments which is not in stances of the case, that without such a practice less rapid or less certain than when measure enforcement of the judgment deliv­ the judgment is enforced within the ered in due course would be rendered countryin which it is delivered but within impossible or considerably more difficult, the territorial jurisdiction of another court. that greater difficulty cannot be presumed if Since, therefore, there is no objective reason enforcement is to take place in a Member justifying the differing rules for which Para­ State of the Community. graph 917 of the ZPO provides — at least as it is interpreted in practice —• regarding the Indeed, whilst such a presumption might conditions required for the issue of a seizure have been justified before the entry into order in cases where a judgment is to be force of the Brussels Convention, and may enforced in another Member State of the without doubt continue to be justified in Community, that difference in fact creates cases where enforcement is to take place in a discrimination contrary to the first para­ non-member country, in view of the delays graph of Article 7 of the Treaty.