C-267/97

* Original language: Italian. 1 — Journal Officiel 1972 L 299, p. 32. The consolidated version 2 — See the Protocol concerning the interpretation by the Court of the Brussels Convention, as amended by subsequent Acces- of Justice of the Convention of 27 September 1968 on Juris- sion Conventions (the most recent of which was the Conven- diction and the Enforcement of Judgments in Civil and Com- tion of 29 November 1996 on the Accession of the Republic mercial Matters, signed in Luxembourg on 3 June 1971 of Austria, the Republic of Finland and the Kingdom of (OJ 1975 L 204, p. 28). The consolidated version of the Pro- Sweden to the Brussels Convention), was published in OJ tocol, as amended by the Accession Conventions, was pub- 1998 C 27, p. 1. lished in OJ 1998 C 27, p. 28.

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bourg company Fortis Bank (hereinafter 'For- by judgment of the Tribunal de Commerce of tis') the equivalent in French Francs of 16 June 1994. The judgment stated 'that the LUF 563 282 together with statutory interest right of creditors to bring individual proceed- and the costs of the proceedings. The claim of ings shall be reinstated only under the condi- Fortis recognised by the French court tions specified in Article 169 of the Law of stemmed from the failure of the Coursier- 25 January 1985'. 4 Under the first paragraph Bellami couple to meet their obligation to of Article 169: 5 repay the sum of LUF 480 000, which they had been lent in August 1990. It does not appear from the case-file that the debtors appealed against the judgment, which was served on them on 24 February 1993.

4 — See footnote 3 above. 5 — As amended with effect from 1 October 1994 by Article 75 of 3 — The court-supervised receivership procedure introduced by Law N o 94-475 of 10 June 1994 on the prevention of and Law N o 85-98 of 25 January 1985 on the court-supervised remedies against the difficulties of undertakings. receivership and liquidation of undertakings (hereinafter 'Law 6 — The concept of 'rights attaching to the person of the debtor' N o 85-98') is designed to safeguard an undertaking in dif- covers claims relating to maintenance payments or a benefit ficulties, preserve its assets and employment and discharge its as compensation for material or non-material damage (see liabilities. The procedure may lead to continuation of the E Derrida, P. Godé and J.-P. Sortais in Redressement et liqui- undertaking's activities, total or partial cessation of business dation judiciaires des entreprises, cinq années d'application, or the court-supervised liquidation of its assets (see Article 1). Paris, 1991, 3rd edition, pp. 430 and 431).

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5. Mr Coursier appealed to the national court 6. By contrast, Fortis maintains that the immu- in accordance with Articles 36 to 39 of the nity from enforcement deriving from Convention (see point 14 below), claiming that the order enforcing the judgment was void. In his opinion, the judgment is not enforceable as Fortis' claim does not come 8 — As the Court of Justice pointed out some time ago, 'the Con- vention merely regulates the procedure for obtaining an order within the exceptions specifically laid down for the enforcement of foreign enforceable instruments and does not deal with execution itself, which continues to be in Article 169 of Law N o 85-98 and the bank's governed by the domestic law of the court in which execu- tion is sought', but the application of the domestic procedural right to bring individual proceedings for rules may not impair the effectiveness of the Convention (see Case 148/84 Deutsche Genossenschaftsbank ν Brasserie du Pêcheur [1985] ECR 1981, paragraph 18, and Case 145/86 Hoffmann ν Krieg [1988] ECR 645, paragraphs 27 to 29). 9 — 'Immunité d'exécution', meaning the preferential treatment 7 — Article 32 of the Convention states, in as far as concerns these which in exceptional cases the law accords to the debtor and proceedings, that 'the application [provided for in the first which relates to the person of the debtor and is designed to paragraph of Article 31 (see point 1 above)] shall be sub- protect him from compulsory enforcement in particular cir- mitted: ... in Luxembourg, to the presiding judge of the tri- cumstances, is described in Donnier, Voies d'exécution et pro- bunal d'arrondissement'. cedures de distribution, Paris, 1993, 3rd edition, pp. 49-51.

Article 169 of Law N o 85-98 applies only to regarding territorial jurisdiction. 12Fortis adds the person of Mr Coursier (and therefore does that in France bankruptcy proceedings are not extend to Mrs Bellami) and has territorial governed by the principle of territoriality; effects which are confined to France. The fact hence, even if the liquidation were to be that the right to bring individual enforcement reopened — which is theoretically possible — proceedings against a debtor previously sub- it could not lead to assets or income held by ject to court-supervised liquidation is not the debtor in other Contracting States being reinstated does not, however, detract in any added to the assets in bankruptcy. way from the enforceable nature of judgments predating the opening of the bankruptcy pro-

application for enforcement may be refused 'only for one of the reasons specified in Articles 27 and 28', 1 1none of which applies in the present case, even according to 7. In my view, the question submitted by the Mr Coursier. If the Court were to hold that national court calls for a preliminary inquiry. the alleged defence of unenforceability of the Above all, it is necessary to examine the pro- judgment in France were well founded and if cedure for reviewing the enforcement in one the enforcement order were quashed, Fortis Contracting State of enforceable judgments delivered in another Contracting State.

Prof. Dr. P. Schlosser on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention, (hereinafter referred to as 'the Schlosser Report'), in OJ 1979 C 59, p. 71, and especially p. 97]. Not without reason, the Court has stated that questions relating to the scope of the provisions of the Convention, which determine jurisdiction within the international legal order, must be regarded as being matters of public policy (sec Case 10 — See point 19 below. C-89/91 Shearson Lehmann Hutton [1993] ECR I-139, para- 11 — See point 16 below. graph 10).

tracting State to foreign decisions of the same creates a natural obligation on the part of the type as the judgment delivered on 16 June debtor: consequently, spontaneous repayment 1994 by the Tribunal de Commerce, Briey. to a creditor cannot be regarded as an undue That judgment in turn refers to Article 169 of payment liable to recovery. 13 The provision Law N o 85-98 (see point 3 above); the ratio in question does not appear to have an equiva nale and scope of that provision therefore lent in any other Member State; particular also warrant a brief analysis for the purposes relevance for the purposes of this Opinion of these proceedings. attaches to the fact that Luxembourg bank ruptcy law (see Article 536 of the Commer cial Code) applies the opposite principle, which permits creditors to resume individual actions for enforcement if the proceedings are

8. I shall commence with the latter point. debts and to start again from scratch, resulting Article 169 — which lays down that the ter in a kind of 'advance rehabilitation' of his mination of court-supervised liquidation for lack of sufficient assets does not reinstate the future enterprise which excludes the risk of right of either unsecured or preferential credi another insolvency. 1 5 It has been observed, tors to bring individual actions against the debtor in respect of claims predating the com mencement of the recovery procedure except 13 — See Y. Guyon, Droit des affaires et des entreprises, Paris, in the cases specifically laid down by law — 1997, 6th edition, Vol. 2, p. 375, Y. Chaput, Droit du redresse ment et de L· liquidation judiciaires des entreprises, Paris,

pension. However, such extinction applies not reason of his own negligence, has forfeited preferential legal to creditors' substantive rights but to their treatment mirror the treatment prescribed for the managers of legal entities, who arc liable to actions to make good defi- ability to take legal action against the debtor ciencies in the company's assets (and, in the event of aggra- vated abuse, to personal court-supervised receivership; see to obtain satisfaction of those rights. This dis Article 178 et seq. of Law N o 85-98). tinction is important, because the counterpart 15 — See Guyon (op. cit. in footnote 13 above), p. 13.

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more specifically, that the major sacrifice in 10. As we know, the object of facilitating the terms of creditor rights and the serious harm recognition and enforcement of judgments to freedom of contract caused by Article 169 between Member States (endorsed by Arti- cannot be justified on grounds of the survival cle 220 of the EC Treaty) is of such impor- of the undertaking, which by definition has tance that it prompted this Court to affirm ceased to exist at the liquidation stage. Con- that the Convention should be interpreted in versely, if the debtor submits a plan for the the spirit of promoting the free movement of continued operation of the undertaking, he is judgments within the single market. 1 8 It was actually prevented from relying upon Arti- precisely in order to pursue that objective cle 169. 1 6 This leads some authors to argue more effectively that the authors of the Con- that the article in question which, 'in disre- vention did not confine themselves to estab- gard of a judgment that has acquired the force lishing simplified procedures for the recogni- of res judicata, divests of his rights a creditor tion and enforcement of foreign judgments who had fulfilled all the obligations imposed but also laid down rules of direct jurisdiction upon him', is unconstitutional. 17 (see Articles 2 to 24), that is to say rules that are also applicable in the State of origin (and not only by the court of the State in which recognition or enforcement is sought when the jurisdiction of the foreign court is reviewed for those purposes). 1 9

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simpler and speedier review of the 'interna­ 'leads to a considerable simplification for the tional legality' of the foreign judgment than creditor, enabling him to avoid those delaying that laid down by the rules of ordinary law. tactics that often lie at the root of appeals In the light of the guarantees accorded to the [made in the State of origin] in purely finan­ respondent in the original proceedings by the cial disputes and which are lodged for the uniform rules on direct jurisdiction referred sole purpose of delaying enforcement of the 20 to above and the safeguards provided for claim. The Convention has, as a rule, given the rights of the defence, again within the priority to the position of the creditor over framework of the objectives pursued by the that of the debtor', although naturally without Convention, 2 1 the foreign judgment is pre­ denying protection to the latter (see points 14 sumed to be in order, even if it has not and 17 below). 2 4 acquired the force of res judicata in the State of origin. Judgments enforceable by law against which there is a right of appeal or which the court has declared to be provision­ ally enforceable may be treated in this way; 2 2 so too may provisional and protective mea­ sures, as Article 24 of the Convention shows. 2 3 As has been observed, this system

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procedure; see point 16 below); or (ii) as an domestic order. 28 In this way, the beneficiary ancillary matter (for example, to support an of the judgment is enabled to satisfy in the objection of res judicata or the offsetting of a State addressed — by using legal instruments claim), in which case jurisdiction rests with appropriate to its system, if necessary by the court hearing the main application. having recourse to public authority 29 — the substantive right found to exist and to be compulsorily enforceable in the State of origin.

26 — See G. Tarzia, Les titres exécutoires et le recouvrement des créances dans l'Union Européenne, in Actualité du droit/ 28 — Whereas 'in the countries which derive their model for Annales de droit de Liège, 1995, p. 381, especially p. 383. importing judgments from French law — the original sig- Enforcement in the State addressed by the enforcement natories to the Convention — the action [open to the inter- bodies of that State necessarily presupposes that the claim, ested party] is designed to append the "enforcement for- after taking account of the actual form in which it is formu- mula", whereby the court traditionally... "mande et ordonne lated, is capable of execution under the powers granted to à tous huissiers de justice, sur ce requis, de mettre ledit arrêt such bodies. Hence, although it is necessary to verify, from (ou ledit jugement) à exécution" ..., in the common law the enforcement phase onwards and in the same way as for countries, which acceded to the Convention at a later date, a domestic decision of the same kind, whether the claim is enforcement proceeds via "registration" [in one or more of . of an enforceable nature, the Convention does not lay down the autonomous jurisdictions of the United Kingdom: that such verification is to be performed by the bodies England and Wales, Scotland, and Northern Ireland], which entrusted with enforcement. In order to ascertain the enforce- consists in inserting the foreign judgment into the records ability of the foreign judgment, the court of the State in or registers of the court from which recognition is sought, which enforcement is sought may interpret the operative almost as though it had been delivered by that court itself. part of the judgment in the light of the statement of reasons The effect of this is that the judgment registered in this way [see Oberlandesgericht, Saarbrücken, Order of 3 August ... "shall, for the purposes of execution, be of the same force 1987, N o 5 W 102/87 (Digest of case-law relating to the and effect ... as [if] the judgment had been originally given European Communities, D Series, I-31-B 12), which granted in the registering court" ...' (see A. Miele, La cosa giudicata enforcement of a French judgment for the repayment of straniera, Padua, 1989, pp. 20-21; footnote omitted). borrowed sums of money, but only with regard to the capital 29 — Sec Gaudemet-Tallon (op. cit. in footnote 19 above), p. 228, sum and not to the contractual interest, which on the basis A. Miele (op. cit. in footnote 28 above) and P. Moreau, De of the original judgment were due, after deduction of sums /'exequatur et des causes de préférence, in Actualité du droit/ which the debtor had already paid as interest and which had Annates de droit de Liège, 1995, p. 395, especially p. 398. been allocated to a particular period prior to the judgment 30 — See the Report by P. Jenard on the Convention of 27 Sep- but not collected]. tember 1968 on Jurisdiction and the Enforcement of Judg- 27 — See Cour de Cassation (France), judgment N o 676 90-21.473 ments in Civil and Commercial Matters (hereinafter referred of 5 May 1993, Times Newspapers v Pordéa (Gazette du to as 'the Jenard Report'), OT 1979, C 59, p. 1, p. 48 (foot- Palais, 1994, I, p. 383). note omitted; emphasis added).

15. The enforcement procedure is a summary one: the competent court (indicated for each Contracting State in Article 32 of the Con vention) decides upon application by the inter ested party, without delay and without hearing the other party. 3 3 The rights of the defence of the party against whom enforcement is sought are safeguarded, however, as there is provi sion for a hearing to be held at a later date if 16. Although the method of lodging the appli the respondent lodges an appeal within one cation for enforcement or recognition (such or two months of service of the measure as the information it must contain or the granting enforcement (depending on the number of copies to be submitted) is deter mined by the procedural law of the State addressed, the Convention requires the pro duction of certain documents, in particular an 31 — For example, under English law, authorisation is needed to obtain a writ of execution if six years have elapsed since the delivery of a judgment [see Rules of the Supreme Court (Rev.), Ord. 46, r. 2; see S. O'Malley and A. Layton, Euro pean Civil Practice, London, 1989, p. 744, footnote 20]. 32 — See Droz (op. cit. in footnote 22 above), p. 351. According 34 — If an appeal is lodged, or in any case during the time speci to O'Malley and Layton (op. cit. in footnote 31 above, at fied for doing so, any decision authorising enforcement docs p. 744), the date on which the foreign judgment must be not permit the applicant to commence measures of enforce enforceable is that on which the court from which enforce ment against the property of the debtor other than the pro ment is sought issues its writ. tective measures for which the legislation of the State in which enforcement is sought provides (see Articles 33 to 39 33 — Such an arrangement is obviously designed to permit 'the of the Convention). If the application for enforcement is element of surprise which is necessary in an enforcement refused, the applicant may appeal to the court designated in procedure if the respondent is not to nave the opportunity Article 40 of the Convention, before which both parties will of withdrawing his assets from any measure of enforcement' be called to state their case. (sec the Jcnard Report, cited in footnote 30 above, p. 50).

Italian judgment].

17. If the foreign judgment of which the applicant seeks recognition is only provision- ally enforceable and an appeal is lodged, the court of the State in which recognition is sought may stay the proceedings (see Article Under Article 47(1) of the Convention, a pro- 30 of the Convention), where appropriate vision which applies only to applications for after having first ascertained that the grounds enforcement, the applicant must also produce for refusal set out in Articles 27 and 28 (see documents which establish that (i) the judg- point 16 above) do not apply. Similarly, under ment is enforceable according to the law of Article 38 of the Convention, if the enforce- the State of origin and (ii) has been served on able foreign judgment is the subject of an the other party in order to give him the appeal in the State of origin (or if the time for opportunity to comply voluntarily. 37 It need lodging such an appeal has not yet expired), hardly be pointed out that the provision in the court of the State in which an objection question, by requiring proof of the enforce- has been lodged may (a) stay the proceedings, ability of the foreign judgment — which may upon application by the appellant, or (b) con- be deduced from the enforcement order or firm the enforcement order, even of its own other references in the same measure, 38 or motion, but make it conditional on the provi- sion of such security as it shall determine.

one of the reasons specified in Articles 27 and the 'anomalous' rules of jurisdiction listed in 28 of the Convention, 3 9 that is to say if the second paragraph of Article 3 of the Con­ (i) recognition (or enforcement) is contrary to vention (Article 28). public policy in the State in which recogni­ tion is sought; (ii) the rights of the defence of a respondent who has not entered an appear­ ance are infringed (failure to serve the docu­ ment which instituted the proceedings in suf­ ficient time); (iii) the judgment is irreconcilable with a ruling given in a dispute between the same parties in the State in which recognition 19. In particular, under no circumstances may is sought; (iv) the court of the State of origin a foreign judgment be reviewed as to its has decided a preliminary question concerning substance (see Articles 29 and 34 of the Con­ vention): even if the court of the State certain matters lying outside the scope of the addressed considers that a point of fact or of Convention in a way that conflicts with a law has been wrongly decided by the court of rule of private international law of the State origin, or if the defendant in the foreign pro­ in which recognition is sought; 4 0 (v) the judg­ ceedings does not enter an appearance, that ment is irreconcilable with an earlier judg­ court cannot refuse recognition or enforce­ ment given in a non-contracting State ment, substituting its own discretion for that involving the same cause of action and between of the foreign court. 4 1 This prohibition, which the same parties, provided that this latter is an expression of the respect and confidence judgment fulfils the conditions necessary for which the legal system of the State addressed its recognition in the State addressed (Arti­ vests in the juridical sovereignty of the State cle 27); (vi) the judgment conflicts with spe­ of origin 4 2 and which is accompanied by an cial or binding provisions regarding jurisdic­ almost total prohibition 4 3 on reviewing the tion (for example, in matters relating to jurisdiction of the original court, constitutes, insurance and consumer contracts) or rules of in my view, the central principle of the entire exclusive jurisdiction contained in the Con­ Convention. vention; and (vii) recognition or enforcement is prohibited under a previous convention concluded by the State addressed with a third State in which the respondent was domiciled or normally resident when the judgment was delivered, if the jurisdiction of the court of the State of origin was based solely on one of 20. Finally, as to the precise scope of the effects of the 'naturalised' 44 foreign judg-

ment, the Court has stated, on the basis of Judgments in bankruptcy cases are outside the the Jenard Report, 4 5 that in principle a for scope of the Convention eign judgment should not be accorded greater authority and effectiveness than it would have in the State of origin (the so-called extension of effects theory). 4 6 Some academic writers, however, add a caveat, which received authori tative approval from Advocate General Darmon in the case of Hoffmann ν Krieg to 21.

ings. As stated in the order for reference, the judgment falls within the scope of the Con vention and as such is capable of enforcement-at least in theory, without refer ence to the solution to be adopted in the indi vidual case. By contrast, the judgment termi 45 — Op. cit. in footnote 30 above. 46 — 'A foreign judgment which has been recognised by virtue of nating the appellant's court-supervised Article 26 of the Convention must in principle have the liquidation for lack of sufficient assets, which same effects in the State in which enforcement is sought as it does in the State in which the judgment was given' [see was delivered on 16 June 1994 by the Tri Case 145/86 (cited in footnote 8 above), in which the Court ruled that a (German) judgment ordering the husband to bunal de Commerce, Briey, cannot enjoy auto make maintenance payments to the wife — which judgment matic recognition under Luxembourg law by remained enforceable in the State of origin (where a subse quent Netherlands divorce decree had not been recognised) virtue of Article 26, as it turns on a matter and into which the enforcement formula had been inserted in the State addressed (the Netherlands), under Article 31 of that lies outside the scope of the Convention the Convention, upon application by the beneficiary — must ('bankruptcy, proceedings relating to the not continue to be enforced, despite the granting of an enforcement order, when it ceases to be enforceable for rea winding-up of insolvent companies or other sons which lie outside the scope of the Convention (i. e. the lapsing of the husband's obligation to make maintenance legal persons, judicial arrangements, composi payments as a result of the dissolution of the marital rela tionship, decreed in the State addressed; it will be recalled tions and analogous proceedings': see

est-elle concevable?, in Seizure and Overindebtedness in the European Union (ed. G. de Levai), The Hague, 1997, p. 595, especially p. 606. 47 — See Droz (op. cit. in footnote 22 above), p. 280, and Gaudemet-Tallon (op. cit. in footnote 19 above), pp. 228-229. According to Advocate General Darmon, the latter 'limita- tion is founded on the need to harmonise interpretations and the desirability of preventing excessive recourse to the public As we know, the exclusion of insolvency pro policy exception' (see the Opinion delivered on 9 July 1987 in Case 145/86, cited in footnote 8 above, [1987] ECR 654, ceedings from the scope of the Convention especially p. 657). In more general terms, the Advocate Gen- was due historically to what at the time eral warned against the risk of a distorted application of the scheme of the Convention, causing the legal system of the appeared to be the insurmountable difficulty State of origin to take precedence over that of the State of execution, and hence to 'subordinate if not negate' the latter of arriving at a solution acceptable to all

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bankruptcy. In the light of this difficulty, and It therefore seems indisputable to me that the in order not to delay unduly the conclusion judgment terminating Mr Coursier's court-. of the Convention, the committee of national supervised liquidation — which derives experts appointed by the Council considered direcdy from the judgment opening the insol­ it advisable to 'excise' the matter in question vency proceedings and constitutes the culmi­ from the draft convention. Separate negotia­ nation of those proceedings — cannot be tions were begun in parallel with a view to relied upon by the debtor to block Fortis' concluding a separate convention relating claim for satisfaction of its rights as creditor. solely to bankruptcy, the scope of which In other words, the Convention works solely would have had to 'dovetail almost com­ to the disadvantage of the applicant in these pletely' with that of the Convention. 4 8 More­ proceedings, exposing him to the risk of over, as the Court of Justice has long since attachment of his income despite his immu­ made clear, this exclusion relates to all pro­ nity from enforcement under the French legal ceedings based, under the various laws of the system, in which both of the judgments rel­ Contracting States, on cessation of payments, evant to the main proceedings originated. As insolvency or lack of creditworthiness of the the Jenard Report 5 0 states, 'pending the con­ debtor, which involve the intervention of the clusion of the separate Convention covering courts culminating in compulsory collective bankruptcy, proceedings arising directly from liquidation of assets or simply in judicial bankruptcy will be governed by the legal rules supervision. Moreover, 'it is necessary, if deci­ currently in force, or by the conventions sions relating to bankruptcy and winding-up which already exist between certain Con­ are to be excluded from the scope of the tracting States'. Convention, that they must derive directly from the bankruptcy or winding-up and be closely connected with the proceedings for the liquidation of assets or supervision by the court.' 4 9

cases. Moreover, the Bankruptcy Conven- scope of the question referred by the national tion 5 1 has not yet entered into force. Arti- court but also outside the jurisdiction of the cle 25 of that Convention (entitled 'Recogni- Court of Justice. tion and enforceability of other judgments') states in the first paragraph of indent 1 : 'Judg- ments handed down by a court whose judg- ment concerning the opening of proceedings is recognised [in accordance with the Con- vention's rules on jurisdiction] and which concern the course and closure of insolvency

has been granted. According to the national 23. As to the possibility of the judgment of court, however, that principle is not appli- 16 June 1994 of the Tribunal de Commerce, cable to judgments delivered in a country Briey, being recognised in Luxembourg at whose legal system is based on the opposite least under the ordinary law, this is obviously principle of the 'territoriality and multiple a matter which the Court may analyse purely nature' of bankruptcy proceedings, as is the as an ancillary issue. In order to examine this

European Union. Like the various unsuccessful drafts that Briey, at least de plano evidential value by treating it as a preceded it, the Bankruptcy Convention is based on the 'bare fact' in order to give it indirect or secondary substan- principle of the unity and universality of the bankruptcy tial effects, to be determined on the basis of domestic legisla- proceedings, which arc opened in the State in which the tion, including rules of private international law (sec 'centre of a debtor's main interests' is situated. This principle G. Cardia, Sentenza civile straniera, in Enciclopedia del is limited, however, by the provision for the opening of sec- diritto, Vol. XLI, Milan 1989, p. 1272, especially p. 1275, and ondary liquidation proceedings with territorial effects in A. Huet, Nota a Tribunal de première instance de Saint- other Contracting States in which the main proceedings have Pierre et Miquelon, ordinanza 26 ottobre 1990, PEBSA/ been recognised (the principle of so-called limited universal- Marinoil Service, in Revue de jurisprudence commerciale, ity). 1991, p. 177, especially p. 179).

Answer to the question referred in the present incurred the objective risk of losing the pro- case tection afforded to him in France by the 'shield' of personal immunity. It was doubtful, to say the least, whether his legal immunity from enforcement proceedings, stemming in the jurisdiction of origin from the judgment of the Tribunal de Commerce, Briey, could automatically be extended from France to the host State. 24. I believe I have now brought into focus the precise contours of the problem, for the solution of which the national court has sought a ruling on interpretation. In my view,

Article 31 and the first indent of Article 47, stantially from others in which the problem upon which Mr Coursier relies in today's arises of ensuring the cross-border movement proceedings — is justified exclusively by the of judgments involving property: given the fact that the Convention does not make inadequacy of the debtor's property in the enforcement dependent on the foreign judg- State of origin — ascertained by the court in ment having acquired the force of res judi- the decision to terminate the court-supervised cata. 53 I have already explained how the liquidation for lack of sufficient assets — the system established by the Convention oper- interested party has evaded the order to meet ates (see point 11 above).

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27. That said, it must be pointed out at once similar proceedings — and cannot therefore that this case undoubtedly differs from the benefit from freedom of movement for the one I have just described, and from more than purposes of recognition, in this case in Lux- one angle: the judgment, which established embourg (see points 21 and 22 above). This that Fortis had a liquidated claim that had exclusion stems from the clear and unam- fallen due (in that it was not subject to time- biguous decision of the Contracting States, limits or conditions), became final well before and in my view there is no doubt that the the action and order for enforcement; nor rules defining the substantive scope of the does the obligation arising out of the legally Convention take precedence over those which, recognised debt appear to have been extin- equally within the scope so defined, concern guished as a result of payment or any another the enforceable nature of foreign judgments,

If it were holding that it exhibited the same 'quality as otherwise, and if the arguments of the appli- the instrument' for the purposes of enforce- cant in the present case were accepted, the ment that French law prescribes for all judg- result would be illogical, as Fortis has cor- rectly pointed out: the French judgment ter- minating the court-supervised liquidation, while falling outside the substantive scope of 54 — See V. Starace, Sull'estinzione di efficacia, nell'ordinamento di origine, della sentenza straniera riconosciuta o resa esecutiva, the Convention, would automatically be in Riv. dir. intern. priv. proc, 1969, p. 152, especially p. 153. accorded recognition under Luxembourg law, 55 — Ibid., pp. 154 and 155. According to O'Malley and Layton (op. cit. in footnote 31 above, pp. 744-745), the same result while at the same time enforcement of the is achieved — once again through the application of the first paragraph of Article 31 of the Convention — if the foreign judgment to which, by contrast, the Conven- judgment has ceased to be enforceable as a result of pre- scription (see footnote 31 above). tion is clearly applicable, would be prevented.

A j u d g m e n t o r d e r i n g t h e p a y m e n t of a s u m of m o n e y does n o t lose t h e quality of enforceability, w h i c h Article 31 of the C o n v e n t i o n o n J u r i s d i c t i o n and t h e E n f o r c e - m e n t of J u d g m e n t s in Civil and C o m m e r c i a l M a t t e r s requires a j u d g m e n t t o p o s - sess in o r d e r t o b e enforced in a n o t h e r C o n t r a c t i n g State, if t h e p a r t y against w h o m e n f o r c e m e n t is s o u g h t is p e r m a n e n t l y p r o t e c t e d in t h e State of o r i g i n f r o m individual p r o c e e d i n g s for e n f o r c e m e n t as a result of a n o t h e r j u d g m e n t delivered in t h a t State in t h e c o n t e x t of insolvency p r o c e e d i n g s w h i c h is n o t o p e n t o r e c o g n i t i o n in t h e State in w h i c h e n f o r c e m e n t is s o u g h t either u n d e r t h e C o n v e n t i o n o r u n d e r t h a t State's national law.

56 — Sec E. Krings, Synthèse. Le droit des saisies dans les États membres de l'union européenne, in Seizure and Overindebt- edness in the European Union (cited in footnote 46 above), p. 3, especially pp. 41-44. The author notes that in the legal systems of some Contracting States (such as Italy, Greece and Belgium) creditors without an enforcement instrument are also permitted to intervene in the enforcement proceed- ings, subject to certain conditions, as a means of safeguarding the equality of claims.

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