C-323/95

2. Mr and Mrs Hayes brought an action against the Kronenberger company in the 4. By judgment of 4 July 1994, the Landger- Landgericht (Regional Court) Saarbrücken icht, Saarbrücken, declared that the question for payment of the outstanding amount of a of furnishing security under Paragraph 110 claim relating to the supply of equipment for of the Z P O was irrelevant on the ground purification and recycling plant. For its part, that the requirement for reciprocity was sat- isfied by membership of the European Union. * Original language: Italian. 1 — The German procedural rule requiring security for costs to be furnished was considered by the Court in the judgment of 1 July 1993 in Case C-20/92 Hubbard [1993] ECR I-3777. That provision was held to be incompatible with the prin- ciple of equal treatment enshrined in Articles 59 and 60 of the Treaty, hence in relation to freedom to supply services, on the ground that in the case in question it constituted a The plaintiffs appealed against the judgment barrier to the exercise of professional activities by nationals of other Member States in Germany. of the Landgericht to the Saarländisches

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OPINION OF MR LA PERGOLA — CASE C-323/95

Oberlandesgericht (Saarland Higher Regio- issue is posited as infringing the general pro- nal Court), which decided to refer the fol- hibition of discrimination on ground of lowing question to the Court for a prelimi- nationality enshrined in Article 6, rather than nary ruling: other specific provisions of the Treaty.

5. At the time when it was formulated, the question put to the Court raised an interesting and tricky issue in regard to the intermeshing of the Community legal order, The Court essentially equated the procedural especially as regards the prohibition of dis- situation in which a Community national crimination on grounds of nationality now finds himself when he is plaintiff in civil pro- enshrined in Article 6 of the Treaty, with a ceedings coming within the ambit of the number of procedural rules of the Member exercise of freedoms conferred by Commu- States, in so far as those rules treat foreigners nity law with that of nationals of the State in differently than nationals as regards access to whose courts the proceedings are brought. the courts. Under those rules, it is provided that where a foreigner brings civil proceed- ings against a national, he must furnish appropriate security for judicial costs. The 2 — Case C-43/95 Data Delecta [1996] ECR I-4661. The national provision at issue in that case provided, just as in this case, national court has framed the question now for security for judicial costs to be furnished by foreign plaintiffs, whereas Swedish plaintiffs were exempt from that before the Court having particular regard to requirement irrespective as to whether they were resident in the circumstances of the case; as the case is Sweden or, at any event, had assets in that country from which any claim on the part of the defendant arising out of framed, the German procedural provision at procedural costs might be met.

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This holds good, the Court held, irrespective legal protection which individuals derive of the existence of international agreements from the direct effect of Community law'. between the plaintiff's State and the defen­ dant's State in regard to the recognition and enforcement of foreign judgments, which are expressly designed to remove any obstacles to what may be described as 'the free move­ 8. The Court's pronouncement is clear. ment of judgments'. 3 Where a Community national asks the national court having jurisdiction to recog­ nize a claim which he has arising out of the exercise of a right conferred upon him by the Treaty, the exercise of the civil action is inseparably linked with the very freedom enshrined in the Community legal order. The procedural law of the Member States govern­ ing the bringing of such actions falls within the ambit of the Community precisely because it becomes an instrument for achiev­ 7. In this case, just as in Data Delecta, the ing the objectives laid down by the Treaty. dispute relates to an activity directly con­ nected with the exercise of a right stemming from the E C Treaty: free movement of goods. This is how it presents itself. The non-payment for the supply of equipment, the claim asserted in the proceedings, is Although Community law generally takes important for present purposes precisely no interest in aspects relating to the Member because it is directly connected with the States' procedural rules, 5 the connection exercise of the aforementioned freedom between the exercise of Community free­ which the Treaty confers on Community doms and their judicial protection means nationals and undertakings. The possibility therefore that even rules laid down in order of asserting one's own claims in legal pro­ to regulate the course of the trial must secure ceedings before the court having jurisdiction Community nationals' right to judicial pro­ is, moreover, the essential corollary of the tection in accordance with the principle of rights laid down in the Treaty. The judicial non-discrimination enshrined in the Treaty. ' protection afforded by the courts of the indi­ vidual Member States in safeguarding the rights and interests arising under the legal order of the Union thus also takes on a Community character in so far as it contrib­ utes towards the full achievement of the 9. In the present case, the difference in treat­ objectives laid down by the Treaty. The ment laid down in Paragraph 110 of the Court has stated in other cases that that obli­ gation derives from Article 5 of the Treaty and that the Member States must 'ensure the 4 — See, most recently, Case C-312/93 Peterbroeck [1995] ECR I-4599. 5 — Although the Court has had occasion to state that proce­ dural rules may conflict with the Community legal order. See Peterbroeck, paragraph 12. 3 — For this point, see my Opinion in Data Delecta, in particular 6 — Case 186/87 Cowan [1989] ECR 195 and Joined Cases at section 17. C-92/92 and C-326/92 Phil Collins [1993] ECR I-5145.

This case is essentially completely analogous to the one which the Court considered in Data Delecta. Accordingly, the solution adopted there should be applied to this case as well. 8 — That justification was, however, broadly echoed both in Advocate General Tesauro's Opinion of 3 October 1996 in Case C-29/95 Pastoors [1997] ECR I-285, I-287 and in the judgment in that case, which was given on 23 January 1997. However, the situation in that case resembled the present case only in some respects. What was in issue there was the legality under Community law of a provision of criminal law relating to road traffic offences under, which non-residents had to pay a substantially higher sum of money in order for proceedings to be extinguished. In its. judgment, the Court 10. It is also worth mentioning, in limine started by observing that neither the Brussels Convention nor any similar agreements were applicable. It therefore litis — as the United Kingdom Government reached the conclusion that the difference in treatment could be justified in principle (although it considered that the rules p o i n t e d o u t in its observations — t h a t the relating to the sanction at issue and its magnitude were con- trary to the principle of proportionality). As far the present Brussels Convention of 27 September 1968 proceedings are concerned, I do not consider that the argu- on jurisdiction and the enforcement of judg- ment based on difficulties in enforcing judgments in another Member State in the absence of an appropriate convention is ments 7 applies to the relationship at issue, at all convincing for the purposes of the application of Article 6 of the Treaty. Lastly, it should be pointed out that given that it is in force between the two some time ago already the Court clearly held that 'the right Member States in question, the Federal to equal treatment laid down in Community law may not be made dependent on the existence of reciprocal agreements Republic of Germany and the United King- concluded by the Member States' {Cowan and Hubbard, at paragraph 17). Moreover, it is in the very nature of the right dom. Hence, the argument relating to the at issue (the right to judicial protection of rights arising difficulties in recognizing and enforcing for- under the Community legal order) that, in a manner of speaking, it sprouts wings and flies higher (and the right is at eign judgments, which has been raised by the times accused of taking on angelic connotations). That right, which belongs to the limited class of fundamental Commu- defendant and the Swedish Government in nity rights, does not tolerate limitations or conditions and order to justify the obligation laid down by consequently cannot legitimize any erosion of its effective- ness brought about by particular situations existing in par- Paragraph 110 of the Z P O also as regards ticular Member States which in any event detract from the principle of non-discrimination.

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