C-260/97
ECLI:EU:C:1999:44
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UNIBANK V CHRISTENSEN
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 2 February 1999 *
1. In these proceedings two questions have Article 50 is worded as follows: been referred to the Court on the interpre- tation of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter 'the Brussels Conven- tion' or 'the Convention'). 1The first is 'A document which has been formally concerned with the term 'authentic instru- drawn up or registered as an authentic ment' in Article 50 of the Convention. The instrument and is enforceable in one Con- second relates to Article 32(2) of the Con- tracting State shall, in another Contracting vention and specifically to the question State, have an order for its enforcement whether it is necessary for a debtor to issued there, on application made in accor- remain resident in the State in which the dance with the procedures provided for in proceedings are commenced. Articles 31 et seq. The application may be refused only if enforcement of the instru- ment is contrary to public policy in the State addressed.
Legislative and factual context and the questions submitted
The instrument produced must satisfy the 2. The provisions of which an interpreta- conditions necessary to establish its authen- tion is sought are Article 50 and Article 32 ticity in the State of origin. of the Brussels Convention, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Brus- sels Convention 2 and by the Convention of The provisions of Section 3 of Title III shall 25 October 1982 on the accession of the apply as appropriate.' Hellenic Republic to the Brussels Conven- tion. 3
* Original language: Italian. 1 — OJ 1972 L 299, p. 32. 2 — OJ 1978 L 304, p. 1. The first sentence of the first paragraph of 3 — O J 1982 L 388, p. 1. Article 50 was amended to read as follows
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by Article 14 of the Convention of 26 May in the State in which enforcement is sought, 1989 on the accession of the Kingdom of it shall be determined by reference to the Spain and the Portuguese Republic to the place of enforcement.' Brussels Convention: 4
'A document which has been formally 3. The events which gave rise to the main drawn up or registered as an authentic proceedings may be summarised as follows: instrument and is enforceable in one Con- Unibank A/S ('Unibank') is a bank gov- tracting State shall, in another Contracting erned by Danish law established in Arhus, State, be declared enforceable there, on Denmark. It has a claim against M r Chris- application made in accordance with the tensen who, between 1990 and 1992 signed three acknowledgements of indebtedness procedures provided for in Articles 31 et (Gældsbrev) in its favour for sums of DKR seq.' 270 000, DKR 422 000 and DKR 138 000. The documents at issue are typewritten and bear the signature of a third person — an employee of the bank — who witnessed the debtor's signature. The documents Following that amendment, 5 Article 50 of expressly state that they may be used as a the Brussels Convention has exactly the basis for levying execution; in that connec- same wording as Article 50 of the Lugano tion reference is made to Article 478 of the Convention of 16 September 1988 on jur- Danish Code of Civil Procedure. According isdiction and the enforcement of judgments to the order for reference, those sums are in civil and commercial matters 6 (herein- now due and payable. after 'the Lugano Convention').
Article 32(2) of the Brussels Convention, 4. When the documents were drawn up, the with which the second question is con- debtor lived in Denmark. He then moved to cerned, provides: Weiterstadt in Germany, where Unibank presented the three documents to him for payment. At the request of the bank, the German court — the Landgericht Darm- stadt — authorised enforcement. M r Chris- 'The jurisdiction of local courts shall be tensen appealed against that decision, determined by reference to the place of contending, first, that he had partially domicile of the party against whom en- discharged the debt and, second, that there forcement is sought. If he is not domiciled was an agreement for payment of the outstanding balance by instalments. The debtor also stated that he had left Germany, 4 — OJ 1989 L 285, p. 1. 5 — That amendment is not applicable to the present case since it but gave no new address. The appeal court came into force in Germany in 1994 whereas the acknowl- set aside the decision of the lower court and edgements of indebtedness at issue here date back to 1990 and 1992. upheld M r Christensen's objection: the 6 — OJ 1988 L 319, p. 9. reasons given related to the fact that it
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was impossible to levy execution in Ger- tion within the meaning of Arti- many since the debtor no longer resided cle 32(2) of the Brussels Convention there. be rendered inadmissible or unfounded by reason of the fact that, while appeal proceedings (Article 36 of the Brussels Convention) are pending, the debtor has left the State in which the proceed- 5. In response to that judgment Unibank ings were instituted and his new place appealed to the Bundesgerichtshof, which of residence is unknown?' considered it necessary to seek a prelimin- ary ruling from the Court on the following questions:
The first question '1. Is an acknowledgment of indebtedness signed by a debtor without the involve- ment of a public official — such as the Gældsbrev under Danish law (Para- 6. By its first question the national court graph 478(1)(5) of the Danish Code of seeks guidance as to the interpretation of Civil Procedure) — an authentic instru- the term 'authentic instrument' used in ment within the meaning of Article 50 Article 50 of the Brussels Convention. In of the Brussels Convention, if that particular, the Court is asked to rule acknowledgment of indebtedness whether — to be classifiable as an authen- expressly specifies that it can serve as tic instrument and therefore be enforceable the basis for enforcement and if it can in other Contracting States — a document constitute the basis for enforcement must be attested by a public official, or at under the law of the State in which it least by some public authority, when it is was drawn up, albeit subject to the created. condition that the court with jurisdic- tion to enforce it may refuse the creditor's application for enforcement if, as a result of objections to the basis for enforcement, there are doubts as to Unibank, in its written observations, con- whether enforcement proceedings tends that the answer must be negative: in should be continued? its opinion, Article 50 of the Convention covers every document which can be clas- sified as enforceable under the national law of the place where it came into being. In its If the answer to Question 1 is in the view it is unnecessary for the document to affirmative: have been drawn up by, or with the involvement of, a public official. That argument essentially attaches primary importance to the effectiveness of the instrument — in particular its availability 2. Can an application for recognition of a as a basis for enforcement under the law of decision or authentic instrument sub- the place of origin — rather than to the mitted to a court having local jurisdic- rules governing its creation.
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The opposite view is taken by Mr Chris- This conclusion also seems to me to be the tensen, the Commission and the German only one compatible with the rationale of and United Kingdom Governments. They the Convention. The latter's purpose is to all consider that, as a category, the authen- 'to facilitate, to the greatest possible extent, tic instruments provided for in Article 50 of the free movement of judgments by provid- the Convention must be attested by a ing for a simple and rapid enforcement public official or by some other person procedure' 9 A document 'formally drawn empowered for that purpose. In other up or registered as an authentic instrument words, appropriate attestation is called and.
. . enforceable in one Contracting State' for, and the procedures for it must be laid is treated in Article 50 of the Convention in down by the law of the State in which the the same way as a judgment. Such instru- document is drawn up or registered. ments can therefore, as it were, enjoy 'free movement' in the same way as judgments, in the sense that, by virtue of Article 50 of the Convention, they are afforded prefer- ential treatment as regards enforcement in other Contacting States. Indeed, it may be said that the rules laid down by the
7. In my opinion the latter view is correct. Convention for authentic instruments are First, a textual argument supporting it may more favourable than those applicable to be derived from the wording of Article 50 judgments: as indicated in Article 50 itself, itself: that provision refers to a 'document an application for an order for enforcement which has been formally drawn up or of an authentic instrument may be refused registered as an authentic instrument and only if enforcement of the instrument is is enforceable in one Contracting State'. 7 contrary to public policy in the State The expression 'formally drawn up or addressed, whereas in the case of judgments registered' gives the idea of a procedure other reasons may be invoked for rejecting whereby the instrument is formalised with applications. 10 the participation not only of the interested parties but also of another person specifi- cally called on to record the document and to endow it with the characteristics of an However, in view of the consequences of 'authentic instrument'. The wording of the classifying a document as an 'authentic relevant provision — in particular the term instrument' it is appropriate to examine 'formally drawn up or registered' — thus that category of document carefully.
An gives the impression that it relates to a authentic instrument is in fact placed on the category of documents which is the result same footing as a judgment. And that of the exercise of the function of public assimilation is justified precisely because recordal, which is entrusted by law to an authentic instrument emanates from a public officials and other persons whose public official exercising powers of reason- authority is defined by legislation. 8 ing and judgment and is therefore a man- ifestation — an indirect manifestation, merely for purposes of documentation — 7 — Emphasis added. 8 — Legal writers include under the heading of 'authentic instruments' those issued by public officials, registrars, notaries, judicial officers and so forth (see G.A_L_ Droz, 9 — See Case C-414/92 Solo Kleinmotoren [1994] ECR I-2237, Compétence Judiciaire et Effets des Jugements dans le paragraph 20, and Case 148/84 Deutsche Genossenschaft- Marché Commun, Paris 1972, p. 391). The author states bank [1985] ECR 1981, paragraph 16. that 'in fact, the authentic instruments referred to in 10 — See the combined effect of Articles 34(2) and 27 and 28 of Article 50 will be first and foremost notarial instruments'. the Convention.
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of public authority. Indeed, it is solely instrument' within the meaning of that because of that reasoning and judgment provision is one that satisfies the following and the fact that they are exercised by conditions: particularly skilled people — acting as agents of the administration or as private individuals vested with public authority — that the Convention provides for an 'authentic instrument' to produce certain effects. Those effects, therefore, are justi- — 'the authenticity of the instrument fied only because they are associated with a should have been established by a firm presumption of correctness and accu- public authority, racy inherent in operations undertaken in a representative capacity by specialists in public documentation. And it is for that reason that the term 'authentic instrument' must be applied not to any document — this authenticity should relate to the recording the expression of a person's content of the instrument and not only, intent but only to those for which appro- for example, the signature, priate authentication procedures are laid down, justifying the treatment of docu- ments within that category as if they were judgments. Conversely, it would not be consonant with the aim and spirit of the — the instrument has to be enforceable in Convention for the Contracting States to itself in the State in which it origi- have to accord to private documents, which nates.' 13 had not been authenticated in any way, the same treatment as that afforded to deci- sions given by judicial authorities.
Therefore, according to that report — which legal writers 14 too regard as a 8. Confirmation of the foregoing consid- helpful guide to the interpretation of Arti- erations may be found in the Jenard-Möller cle 50 of the Brussels Convention — an Report 11on the Lugano Convention. With authentic instrument is only a document regard to Article 50 of that Convention, which has been perfected by the involve- which corresponds to the provision at issue ment of a public authority called on here and has essentially the same word- specifically to authenticate the instrument, , ing, 12 the Report states that an 'authentic in the sense of endowing it with reliability and authenticity, regarding not only extrin- sic requirements such as the date or signa- 11 — OJ 1990 C 189, p. 57. ture but also the requirements concerning 12 — As stated in point 2, as a result of the amendments to the the content of the document itself. Brussels Convention made following the accession of the Kingdom of Spain and the Portuguese Republic, Article 50 of that Convention has exactly the same wording as the corresponding provision of the Lugano Convention. How- ever, even before that amendment, the differences were 13 — Paragraph 72 (emphasis added). The same paragraph of entirely insignificant and did not affect the substance of the the report states that 'commercial bills and cheques' are provision: the expression 'have an order for enforcement not covered by Article 50. issued' was simply replaced by the expression 'declared 14 — See V.H. Gaudement-Tallon, Les Conventions de Bruxelles enforceable'. et de Lugano, Paris 1993, p. 417.
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9. In the light of the foregoing considera- The second question tions, I do not think it is possible for an acknowledgment of indebtedness drawn up without any attestation by a public offi- cial — like the one at issue in this case — to 11. An answer to the second question is constitute an 'authentic instrument' within requested by the national court only in the the meaning of Article 50 of the Conven- event of the first being answered in that tion. Authenticity is an essential require- affirmative, that is if this Court should ment of the category of documents gov- consider that an acknowledgment of erned by that provision; and — for the indebtedness drawn up without the involve- reasons which I have set out above — there ment of a public official constitutes an can be no authenticity unless a public authentic instrument within the meaning of authority is involved when the document Article 50 of the Convention. In view of the is brought into being. answer which I think should be given to the first question, it is unnecessary to answer the second. However, for the sake of thoroughness, I shall examine the second question as well.
The question seeks essentially to ascertain whether a legal action can be pursued in another Contracting State only if the 10. A last aspect of the question raised by defendant continues to reside in that State, the national court must now be considered. where proceedings were commenced. In my It is clear from the wording of the question view the answer must be negative. It is clear that the referring court is asking whether from Article 31 et seq. of the Convention mere enforceability in the State of origin is that it is for the creditor to choose in what in itself sufficient to bring the document in Contracting State to lodge an application question within the scope of Article 50. for enforcement. In particular, Article 32(2) The answer must, in my opinion, be states that 'The jurisdiction of local courts negative: under the abovementioned provi- shall be determined by reference to the sion, it is not sufficient for the document to place of domicile of the party against be enforceable, it must also be an authentic whom enforcement is sought. If he is not instrument in the sense defined above. That domiciled in the State in which enforce- removes from the scope of Article 50 those ment is sought, it shall be determined by acts which might perhaps serve as a basis reference to the place of enforcement.' That for levying execution in the State of origin provision does not indicate the date to but are nevertheless not authentic instru- which reference should be made in apply- ments under the law of that State. 15 ing the rule of the forum débitoris. It seems to me, however, that it is beyond doubt that such date can only be that of lodgment of 15 — See, to that effect, the lenard-Möller Report, cited above, paragraph 72, which, by way of example, excludes from the application, with the result that no the scope of Article 50 'settlements occurring outside courts which are known in Danish law and [are] enforce- supervening changes in the factual situation able under that law' (emphasis added). which gave rise to the jurisdiction of the
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court seised can have any impact on the of residence of the debtor after the applica- jurisdiction thus determined. The creditor tion was submitted, the debtor could easily must be able to rely on the situation as it evade enforcement proceedings merely by existed when he made his application. changing his residence. For those reasons, I Otherwise, the fundamental requirement consider that a change of residence on the of legal certainty would be undermined. part of a debtor after an application for Also, if the jurisdiction of the court seised enforcement has been lodged has no effect were to be removed as a result of a change on the admissibility of that application.
Conclusion
12. In the light of the foregoing observations, I suggest that the Court give the following answers to the questions referred to it by the Bundesgerichtshof:
(1) The first paragraph of Article 50 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that an acknowledgement of indebtedness which has not been authenticated by a competent public authority does not constitute a 'document which has been formally drawn up or registered as an authentic instrument and is enforceable in [a] Contracting State'.
(2) Article 32(2) of the same Convention must be interpreted as meaning that an application for an order for enforcement does not become inadmissible or unfounded by reason of the fact that a debtor leaves the territory of the State in which enforcement is sought after bringing an appeal against that application.
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