C-412/97

ED V ITALO FENOCCHIO

OPINION OF ADVOCATE GENERAL COSMAS delivered on 21 January 1999 *

Table of contents

I — Introduction I - 3847 II — Relevant legislation I-3848 A — Community provisions I - 3848 B — National provisions I-3849 III — Facts I-3850 IV — Question referred for a preliminary ruling I-3850 V — Answer to the question referred for a preliminary ruling I-3851 A — Nature of the proceedings before the national court I-3851 B — Wording of the question referred for a preliminary ruling I-3851 C — Identifying the relevant provisions of Community law I-3852 (a) Observations submitted by the Commission I-3852 (b) My view on the matter I-3855 D— Conferment of judicial protection I-3860 E — Discrimination within the meaning of the first paragraph of Article 6 of the EC Treaty I-3865 F — Article 34 of the EC Treaty I-3869 G — Article 73b of the EC Treaty I - 3872 VI — Conclusion I - 3873

I — Introduction Treaty, the Pretura C i r c o n d a r i a l e di Bologna (District M a g i s t r a t e s ' C o u r t , Bologna, Italy) asks the Court whether the prohibition on issuing a summary payment order (decreto ingiuntivo) where it is to be 1. By the present reference for a prelimin- served on the defendant outside Italy or ary ruling under Article 177 of the EC territories under Italian sovereignty infringes Articles 34, 59 and 73b of the EC Treaty. * Original language: Greek.

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3. Article 59 of the Treaty provides: 5. In addition, the first paragraph of Arti­ cle 6 of the Treaty provides:

'Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be progressively abolished during the transitional period in respect of nationals of 'Within the scope of application of this Member States who are established in a Treaty, and without prejudice to any special State of the Community other than that of provisions contained therein, any discrimi­ the person for whom the services are nation on grounds of nationality shall be intended. prohibited.'

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ED V ITALO FENOCCHIO

B — National provisions Article 643 of the Code, copies of the order and the application are to be served on the defendant.4

it is well founded. If that is the case, the and Northern Ireland. court issues the summary payment order, Article 644 of the Code provides that a summary payment order is rendered inoperative where it is not served within which it may, subject to Article 642 of the 60 days from the court's decision in the case of service on Italian territory and 90 days in all other cases. As the Code, make enforceable on a interim Commission points out, now that no territories outside Italy basis. 3 Under the second paragraph of are subject to Italian sovereignty, it is difficult to see precisely when that 90-day period would apply, given the prohibition at issue contained in the last paragraph of Article 633 (see point 7 below). Following the abovementioned joint service, the defendant 1 — See Case C-474/93 Hengst Import v Campese [1995] ECR may apply to have the order for payment set aside. I-2113, paragraph 4 et seq. Article 641 of the Code provides for a period of 40 days from service (the court may, for certain reasons, vary the 2 — That period may be reduced to five days if the applicant period to between 10 and 60 days) within which the shows just cause or be extended to 30 days. defendant may make that application. Pursuant to Arti- 3 — In principle, the order is not automatically enforceable: cle 650 of the Code, the defendant may also apply to have leave of the court, granted on application by the creditor the order set aside after the expiry of the period set by the after expiry of the period for applying to have the order set order provided that he proves that he was not aware of the aside, is necessary to make it enforceable. On application by order due to improper service or force majeure. the creditor, however, the order may be enforced on an If the debtor applies to have the summary payment order set interim basis where the claim is based on a bill of exchange, aside within the prescribed period, the ordinary inter partes a banker's draft, a cheque, a certificate of stock-market procedure is followed (Article 645(2) of the Code).

(Article 642(2) of the Code). (Article 647(1), in fine).

8. ED Sri (a company whose registered office is in Funo di Argelato in the Province of Bologna, hereinafter 'the applicant') and Italo Fenocchio (who is resident in Berlin, Germany, hereinafter 'the defendant') entered into a contract for the supply of certain goods by the former to the latter for the sum of ITL 19 933 700. Since the defendant paid only a sum of ITL IV — Question referred for a preliminary 100 000 by way of down-payment when ruling the goods were ordered, the applicant, having delivered the goods, applied on 6 October 1996 to the Pretura Circondar­ iale di Bologna, under Article 633 et seq. of the Code, for the issue of a summary order requiring the defendant to pay the balance due of ITL 19 833 700, together with 10. Since the national court was uncertain, interest and costs. following a request made by the applicant, whether it should apply the relevant provi­ sion of the Code or find that the prohibi­ 5 — Article 633 of the Code lays down in general terms an tion on the issue of a summary payment exhaustive and cumulative list of the conditions for admissibility of an application for issue of a summary order where the order is to be served payment order; it specifies that such orders are confined to a abroad infringes the free movement of creditor's claim for a sum of money or a specific quantity of fungibles or a claim pertaining to the delivery of specific goods and capital and the freedom to chattels, and are subject to the submission of written evidence of the claim, enabling a strong presumption to be provide services, it stayed the proceedings drawn and the existence of the claim to be quickly verified. before it by order of 29 November 1997 The second and third subparagraphs of the first paragraph of Article 633 specify the particular debts that a debtor may recover through the summary procedure. The second paragraph of Article 633 adds that an order may be issued even where the right is subject to the fulfilment or a counter- 6 — See the judgments cited by the Italian G o v e r n m e n t : obligation or of a condition, provided that the applicant Judgment N o 2376 of 22 June 1957, in Giustizia Civile, submits evidence enabling it to be presumed that the 1957,1, 1492 and Judgment N o 2736 of 1 August 1968, in counter-obligation or condition has been fulfilled. Giurisprudenza Italiana, 1969, I, 1538.

V — Answer to the question referred for a 12. As regards the wording of the question preliminary ruling referred for a preliminary ruling, I would recall that, under Article 177 of the Treaty, the Court does not rule on the interpreta- tion or validity of national provisions or their compatibility with Community provi- A — Nature of the proceedings before the sions but provides the national court with national court all such matters relating to the interpreta- tion of Community law as are necessary to enable that court to rule itself on the compatibility of a provision of national 11. As the Italian Government points out, law with Community rules. 8 the fact that the question is referred for a preliminary ruling by a court adjudicating in proceedings for the issue of a summary 7 — S e e Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 12, and the cases cited therein. payment order, which are not inter partes, 8 — In order to underline that it interprets Community and not does not raise an issue as to the admissi- national law, the Court rephrases questions referred for a preliminary ruling, as is evidenced by the use of expressions bility of that question. With regard to the such as 'the question submitted must therefore be construed nature of the proceedings before the as...' or 'the Court is consequently of the opinion that the national court, in referring [the question] for a preliminary national court, the Court has already held ruling, is seeking in essence to know...'. See, for example, Case 27/74 Demag [1974] ECR 1037; Case 151/79 Lee that the President of an Italian court [1980] ECR 1495, paragraph 1 1 ; Case 22/80 Boussac adjudicating in proceedings for the issue [1980] ECR 3427, paragraph 5; Case C-69/88 Krantz [1990] ECR 1-583, paragraph 7; and Case C-204/90 Bach- of a summary payment order as provided man [1992] ECR I-249, paragraph 6.

13. Following the above two introductory observations, I will now concentrate on the issue of the usefulness which the answer sought by the national court in its request Specifically, the Commission considers not for interpretation of Articles 34, 59 only that those two articles are not directly and 73 b of the EC Treaty may have for applicable to the main proceedings but also disposing of the main proceedings. that their interpretation would offer the national court no additional guidance. First, the possible application of the last paragraph of Article 633 of the Code did not prevent the movement of the goods within the Community, which were sup- plied by the applicant to the defendant, 14. Whilst the national court considers that thus proving, according to the Commis- 'logically and legally, the question raised sion, that the issue of a restriction on must be resolved before the main issue is exports within the meaning of Article 34 of disposed of (the grant or the dismissal on the EC Treaty does not arise. Second, it grounds of inadmissibility of the applica- would not be of any use to interpret tion for a summary payment order)', it also Article 59 of the EC Treaty given that the expressly states that Articles 34, 59 and contract between the parties is for the 73b of the EC Treaty, whose interpretation supply of goods, not services. On the other is sought, 'are not in this case directly hand, the Commission maintains that inter- applicable to the dispute before the pretation of Article 73 b of the Treaty is national court, but must be interpreted in useful for disposing of the main proceed- a uniform manner and their effects must be ings.

The question whether a provision of national law, first, falls within the ambit of a Community provision guaranteeing the Also, the compatibility of the national freedom to export and, second, is compa- provision at issue with Article 34 of the tible with that provision cannot depend on Treaty and its applicability in specific the fortuitous circumstance that the party proceedings before the national court alleging such an incompatibility delivered depend in principle on objective criteria the goods. falling within the general operation of intra-Community trade, and concerning the specific aim pursued by that Commu- nity provision as well as the nature of the national provision at issue. 11 On the other hand, they do not depend on the subjective First, the Court has consistently held 10that circumstances of a given individual, such as rules which are capable of hindering intra- the abovementioned party, which may be Community trade even potentially may be due to other reasons and do not necessarily considered to be measures having an effect indicate either the specific effects of the national provision on that party or, all the more so, its more general effects on intra- 9 —See, for example, Case C-314/96 Djabali [1998] ECR I-1149, paragraph 19; Case 244/80 Foglia [1981] ECR Community trade. 3045, paragraph 18; and Joined Cases C-422/93, C-423/93 and C-424/93 Zabala Erasun and Others [1995] ECR I-1567, paragraph 29. 10 — See Case 8/74 Procureur du Roi v Dassonville [1974] ECR 11 — See, for example, Case C-80/92 Commission v Belgium 837. [1994] ECR I-1019, paragraph 24.

12 — See Joined Cases C-163/94, C-165/94 and C-250/94 Sanz 18. On the other hand, I agree with the de Lera and Others [1995] ECR I-4821, paragraph 17. Moreover, inasmuch as it is accepted that, by repeating observations submitted by the Commission almost verbatim the wording or Article 1 of Council with regard to Articles 59 and 73b of the Directive 88/361/EEC of 24 June 1998 for the implemen- tation of Article 67 of the Treaty (OJ 1988 L 178, p. 5), Treaty. Article 73b merely confirms the principles already estab- lished by that directive (see, on that matter, point 10 of the Opinion of Advocate General Tesauro in Sanz de Lera, cited above), it must also be accepted that that directive, although repealed by the entry into force of Article 73b, is of great help in defining the 'movement of capital' guaranteed by Article 73b(l) of the Treaty. Under heading VII of Annex I to that directive, credits related to commercial transactions or the provision of services in 19. The contract between the applicant and which a resident of a Member State is participating are the defendant indeed relates to an order for listed as movements of capital within the meaning of Article 1 of the directive. The explanatory notes to that goods and not to the provision of services. annex state that such credits include contractual trade credits (advances or payments by instalment in respect of Given that, as has been pointed out, the work in progress or on order and extended payment terms, whether or not involving subscription to a commercial Court is not obliged to answer abstract and bill). hypothetical questions, I am of the opinion In addition, as the Commission observes, since the Court has in effect acknowledged that Article 73b(l) has direct that interpretation of Article 59 of the effect (see Sanz de Lera, paragraph 41 et seq.), the same Treaty would not be useful for disposing must be accepted with regard to Article 73b(2), which corresponds to Article 73b(l) in both wording and mean- of the main proceedings. ing.

22. I consider, however, that before deter- mining, as the Commission does, whether or not it is useful to interpret each Treaty article cited in the order for reference, it is necessary to analyse in depth whether those articles may, necessarily indirectly, apply in the main proceedings. Such an analysis shows that the grounds of the order for 24. None the less, the issue can be raised as reference are in essence the product of a to whether the provision at issue should be jump in logic with regard to the choice of the Community rules within whose scope it is logically correct, but also of practical 14 — See Dassonville, cited above in footnote 10. It is also to be noted that the fact that a national measure is not a 'trading benefit in disposing of the main proceed- rule', the wording characteristically used in Dassonville, or ings, for the national provision at issue to does not have as its 'specific object or effect the restriction of patterns of exports', as held by the Court specifically be brought within. 13 with regard to the measures referred to by Article 34 of the Treaty (see, for example, Commission v Belgium, cited above in footnote 1 1 , paragraph 24) does not appear to have any bearing on whether it falls in principle within the scope of the provisions of Community law guaranteeing 13 — As regards that jump in logic, it is not without significance the fundamental freedoms pertaining to intra-Community that the applicant in the main proceedings referred to trade. Those aspects of the national measure concern the Articles 34, 59 and 73b of the Treaty and that there substantive examination of whether it is compatible with already exists a precedent where an Italian court, ruling in the fundamental freedoms and not whether it is in proceedings for a summary payment order, did not apply principle capable of falling within the scope of the the final paragraph of Article 633 of the Code, invoking its provisions protecting those freedoms. Moreover the Court, incompatibility with those Community provisions. See applying the rule in Dassonville as the major premiss in its Order No 1500 of the Pretura di Torino of 12 February judicial reasoning, has agreed to examine as to the 1996 in Jolly Grafica snc v T-Direct SL (Giurisprudenza substance the interpretation of Article 30 of the Treaty in Italiana 1996, I Senz. II Col. 822 to 832). With regard to the light of national procedural rules (see Krantz, cited the Italian courts not applying the provision at issue, see above in footnote 8, a judgment relating to the interpreta- also the judgment of the President of the Tribunale di Trani tion of a provision of national law on the right of national referred to in Hengst Import, cited above at footnote 1 authorities to seize goods sold subject to a reservation of (paragraphs 3 and 8). title, particularly paragraphs 9 to 12).

27. This possible restriction of judicial protection falls within the scope of the general principle of Community law that Member States must secure the required 26. As is clear from the order for reference, judicial protection of the rights which the national court takes the view that the Community nationals derive from the relevant procedural provision in the Code Treaty, a principle which is based on the may restrict the free movement of goods, capital and payments in that Italian under- takings could be led to prefer to maintain 16 — The national court considers that 'the following conflicts are possible between the prohibition in the last paragraph business relations with other Italian under- of Article 633 and the principle of free movement in takings, possibly excluding customers from relation to the provisions of the Treaty of Rome embody- ing that principle. (1) The prohibition might constitute a another State, since it is only as against measure equivalent to a quantitative restriction on exports and consequently be prohibited by Article 34 of the Treaty of Rome. (2)... (3) Finally, the summary procedure is also used to protect transfers of capital, being applicable whenever sums of money are owed to a creditor (see the 15 — See, for example, Case C-280/91 Viessmann [1993] ECR first paragraph of Article 633) and therefore might con- I-971, paragraph 17; Case C-114/91 Claeys [1992] ECR stitute a measure having an effect equivalent to restrictions I-6559, paragraphs 10 and 1 1 ; and Case 35/85 Tissier on movement of capital, prohibited by Article 73b of the [1986] ECR 1207, paragraph 9. Treaty of Rome'.

17 — See, for example, Case 222/84 Johnston [1986] ECR 1651, paragraphs 17, 18 and 19; Case 222/86 Unectef vHeylens 18 — See Case C-185/97 Coote v Granada Hospitality [1998] [1987] ECR 4097, paragraph 14; and Case C-97/91 ECR I-5199: 'The principle of effective judicial control laid Borelli v Commission [1992] ECR I-6313, paragraph 14. down in Article 6 of [Council Directive 76/207/EEC of The Court has also held that any provision of a national 9 February 1976] would be deprived of an essential part of legal system and any legislative, administrative or judicial its effectiveness if the protection which it provides aid not practice which might impair the effectiveness of Commu- cover measures which, as in the main proceedings in this nity law by withholding from the national court having case, an employer might take as a reaction to legal jurisdiction to apply such law the power to do everything proceedings brought by an employee with the aim of necessary at the moment of its application to set aside enforcing compliance with the principle of equal treat- national legislative provisions which might prevent, even ment. Fear of such measures, where no legal remedy is temporarily, Community rules from having full force and available against them, might deter workers who consid- effect are incompatible with those requirements, which are ered themselves the victims of discrimination from pursu- the very essence of Community law. See, for example, Case ing their claims by judicial process, and would C-213/89 Factortame and Others [19901 ECR I-2433, consequently be liable seriously to jeopardise implementa- paragraph 20. tion of the aim pursued by the Directive' (paragraph 24).

30. Additionally, inasmuch as the Italian procedural provision at issue falls, even if indirectly, within the scope of the free movement of goods and capital and differ- entiates between the procedural means available to persons trading with residents of Italy and those trading with residents of another Member State, I consider that it is In other words the Court, changing to some useful to answer the question whether the extent its position regarding the 'ancillary' first paragraph of Article 6 of the Treaty is nature of the first paragraph of Article 6 of to be interpreted as precluding a domestic procedural provision of a Member State 19 — See Case C-43/95 Data Delecta and Forsberg [1996] ECR which prohibits the issue of a summary I-4661, paragraphs 14 and 15. See also Case C-323/95 payment order where service on the defen- Hayes [1997] ECR 1-1711, paragraphs 16 and 17, and Case C-122/96 Saldanha and MTS [1997] ECR I-5325, dant must be effected outside the territory paragraphs 17 to 24.

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ED V ITALO FENOCCHIO

21 — See Hayes, cited above in footnote 19, paragraph 14, and Phil Collins, cited above in footnote 20, paragraph 27. It should, however, be pointed out that, regardless of whether Article 6 of the Treaty is ancillary or autonomous, 20 — I n Case C-20/92 Hubbard [1993] ECR I-3777, which the Court has consistently held that, although rules of concerned the provision of German law requiring nationals procedure are, in the absence of Community regulations, a of another Member State to give security for costs, the matter for which national legislatures are responsible, Court, despite being asked by the referring court to rule Community law sets limits on their power.

The procedural law of the Member States regulate defined situations. He stated: 'In other words, governing the bringing of such actions falls within the the provision in question covers the system in a generai ambit of the Community precisely because it becomes an way, but specific rules may derogate from it (provided that instrument for achieving the objectives laid down by the they are reasonable and justified).' However, referring to Treaty.' He added: 'Although Community law generally Joined Cases C-92/92 and C-362/92 Phil Collins and takes no interest in aspects relating to Member States' Others [1993] ECR I-5145, he took the view that in Data procedural rules, the connection between the exercise of Delecta and Forsberg 'it should be examined whether the Community freedoms and their judicial protection means provision of Swedish law directly or only indirectly harms therefore that even rules laid down in order to regulate the a legal position protected by the Community legal order'. course of the trial must secure Community nationals' right In this respect, he observed that the national provision at to judicial protection in accordance with the principle of issue, likewise imposing an obligation to give security for non-discrimination enshrined in the Treaty.' See point 8 of costs, 'is purely of a procedural nature and, if its the Opinion of Advocate General La Pergola in Hayes, prescriptive content is considered, it can be seen that it is cited above. not intended as such to regulate activity of a commercial 22 — It should be noted at this point that, in the present case, the kind or to impose barriers to the free movement of goods. possibility of applying the case-law according to which the Yet it has an indirect influence on the exercise of that Court may consider Community rules which are not freedom in the sense that it makes it more difficult to expressly cited by the national court (see point 25 above) is resolve disputes arising out of transactions and dealings consistent with the fact that there is no material in the file connected with the free movement of goods'. On that indicating that the national court intended to refer a ground, namely the purely indirect relationship between question concerning the interpretation of Articles 34, 59 the provision at issue and the free movement of goods, he and 73b only. See, by contrast, Case 247/86 Alsatel [1988] concluded that the national court correctly relied on ECR 5987, where it was held that the national court had

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33. It is in principle appropriate to analyse and inexpensive and an important means of the scope of those articles because, while obtaining an enforceable court order for interpretation of the right to judicial pro- the recovery of debts where recourse to tection and of the first paragraph of ordinary proceedings is not advantageous. Article 6 of the Treaty is required, it may However, the order is issued ex parte, that not necessarily be sufficient. That is is to say without the defendant being heard. because, while the national provision in For that reason, it is also provided that the question may be considered in essence not debtor may apply to have the order set to deprive the person concerned of all aside, so that the procedure complies with judicial protection or not to amount to the fundamental procedural principles giv- discrimination within the meaning of the ing both parties a right to a hearing and first paragraph of Article 6, it may, from a concerning exercise of the rights of the purely economic or commercial point of defence. The advantages of the summary view, discourage the exercise of those payment order are therefore offset by fundamental freedoms. equally significant disadvantages and, as the French Government observes, are ulti- mately subject to the defendant not apply- ing to have the order set aside: then the applicant is obliged to revert to ordinary proceedings and satisfaction of his claims may of course take longer than if he had initiated such proceedings at the outset. 34. On the basis of the above observations and given the issue as to whether the national provision at issue in the main proceedings is compatible with Community law, I shall proceed to interpret the princi- ple of judicial protection (D), the prohibi- tion of discrimination within the meaning of the first paragraph of Article 6 of the EC Treaty (E), Article 34 of the EC Treaty (F) and, last, Article 73 b of the EC Treaty (G).

23 — As the national court mentions, another remedy is established in Italian law which is similar to the summary payment order in that the evidential requirements are the same and it also involves the issue of an order, namely the 'ordinanza anticipatoria' (provisional order) provided for by Article 186b of the Code which, in contrast to the summary payment order, may be issued even against debtors residing abroad. However, the procedure is in any event more onerous than the procedure for a summary payment order, since it involves initiating ordinary pro- ceedings. 24 — For instance, in connection with the grant of interim protection, see by way of example, the judgments in Factortame, cited above in footnote 17, and in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdith- It is thus clear from such considerations, marschen und Zuckerfabrik Soest [1991] ECR 1-415, and which have for a long time led numerous the order in Case C-399/95 R Germany v Commission [1996] ECR 1-2441, paragraph 46. Member States to adopt special simplified

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37. While a simplified special procedure for debt recovery, such as the procedure for a summary payment order found in Italian law, has the greatest benefit where it can be used against a debtor residing in another Member State, as proceedings in the Mem- ber State where the debtor resides may thus be avoided, such a procedure could raise issues with regard to determining the 25 — See, for example, G. Horsmans, La procédure d'injonction international jurisdiction of the national ou le recouvrement simplifié de certaines créances dans les pays du Marché Commun, Bruylant, Brussels, 1964; courts, particularly in relation to protection H. Pruning, 'Auf dem Weg zu einer Europäischen Zivil- prozeßordnung. Dargestellt am Beispiel des Mahnverfah- of fundamental rights of the debtor under rens', in Festschrift für Gottfried Baumgärtel, Zum 70. the special procedure. More specifically, as Geburtstag, 1990, p. 457 et seq. Even though most Member States — 11 in total — have the French Government observed at the adopted procedures for the simplified recovery of debts comparable to the procedure for a summary payment hearing, should ordinary proceedings be order found in Italian law, summary payment order reverted to following an application by the procedures far from apply in all Member States.

According to the French Gov- uncontested claims to be governed by an appropriate ernment, that does not always safeguard simplified procedure, benefiting financially both the courts and the parties involved. On the views of that working the debtor's rights (language of the pro- group and its plan for a uniform procedure governing the issue of payment orders in all the Member States, see ceedings and so forth), particularly in cases, M. Storme (ed): Rapprochement du Droit Judiciaire de such as those involving a consumer debtor, l'Union Européenne/Approximation of judiciary Law in the European Union, Kluwer, Editions Juridiques, Bel- where the assignment of jurisdiction to the gium, and Martinus Nijhoff Publishers, Dordrecht/Boston/ courts of the Member State in which he London, 1994, particularly pp. 108, 147, 177 and 207. 26 — See, in particular, the seventh and fourteenth recitals in the resides is an important element in the preamble to that proposal (98/C 168/09, OJ 1998 C 168, protection of his position under the proce- p. 13): 'Heavy administrative and financial burdens are placed on businesses, particularly small and medium-sized dure. ones, as a result of late payment;.

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addition to the protection of the funda­ priate prohibitions or restrictions on those mental procedural rights which I have procedures by relying on fundamental referred to above, possible restrictions or rights and the abovementioned Community prohibitions'on special simplified proce­ law principles. However, it cannot prohibit dures for debt recovery may also be based such procedures generally or without justi­ on the principles regulating the interna­ fication. tional jurisdiction of the courts of the Member States as well as on other princi­ ples and provisions of Community law, such as those relating to consumer protec­ tion. Second, it is to be noted that some of those issues are governed by the Brussels Convention. 27 None the less, inasmuch as there is no systematic Community legisla­ tion concerning procedure and, subject to the restrictions imposed by Community law, 28legislative competence in that regard 38. It is therefore my view that, in so far as rests with the Member States, it must be general prohibitions or restrictions on spe­ accepted that it is in principle a matter for cial simplified procedures for debt recovery those Member States, within their auton­ are not objectively justified on the basis of omy as to procedure, to determine both the the need for protection of fundamental organisational details and the prohibitions procedural rights and of principles of and restrictions, such as those mentioned Community law or on the basis of specific above, on those special procedures. How­ Community legislation (laid down by inter­ ever, this does not negate the basic need for national agreement or by the Community special simplified procedures for debt acting independently), they are contrary to recovery, a need which, as I mentioned the general principle of Community law above, is in essence connected with confer­ according to which Member States are to ring complete, effective and timely judicial confer the necessary judicial protection of protection. National legislation can there­ the rights derived by Community nationals fore provide for the necessary and appro­ from the Treaty.

is to say even where it is to be served in and international, 3 0 as well as the another Member State, and does not national, 3 1 legal framework has been appear to be objectively justified, particu- transformed to the point where the method larly having regard to the context of the once chosen, in the form of the provision at main proceedings. issue, to ensure that the defendant could exercise his rights of defence in good time is no longer necessary or appropriate for the attainment of that objective. 32 As the

27 April 1979. Under Article 15 of the Convention, and thus being unable to exercise his rights effective and timely service is dependent on the defendant having actual knowledge of the document. of defence. With regard to enabling ever faster service of documents abroad, it is also worth noting the recent Convention of 26 May 1997 on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters (OJ 1997 C 2 6 1 , p. 1). 31 — As the Commission has stated in its written observations, and has not been disputed, Law N o 42 of 6 February 1981 (GURI N o 62 of 4 March 1981), which was adopted to bring Italian rules of procedure into line with the Hague Convention and the case-law of the Constitutional Court, ratified the Hague Convention and amended Article 142 of

arrange for it to be sent to the defendant through the of Book IV of the Code (Articles 633 to 656), together Ministry of Foreign Affairs. As the Commission points out, with the application instituting the proceedings, must be the service of legal documents abroad was based on a regarded as 'the document which instituted proceedings clear — and often false — presumption that the addressee or. . . an equivalent document' for the purposes of Arti- had knowledge of them within the prescribed time-limits. cle 27(2) of the Brussels Convention (paragraph 26).

Nor does it appear from the material in the 40. On the basis of the foregoing consid- file that, having regard to the present case, erations, I propose that the Court should the prohibition laid down by the provision hold that the general principle of Commu- at issue is justified under the rules govern- nity law under which the Member States ing the international jurisdiction of the are to confer the necessary judicial protec- courts of the Member States and the tion of the rights derived from the Treaty provisions of the Brussels Convention in by nationals of the Member States of the particular. This is because, as the Italian Community is to be interpreted as preclud- Government and the Commission stated at ing a procedural provision of a Member the hearing and was not disputed, under State which prohibits generally a simplified Italian law the court with jurisdiction to procedure for debt recovery, such as the issue a summary payment order also has procedure for the issue of a summary jurisdiction over an action brought by way payment order provided for by Article 633 of ordinary proceedings. As was also et seq. of the Code, where service on the pointed out by the Commission at the defendant of the decision made in that hearing, if the provisions of the Code procedure, as is the case with service on the governing ordinary proceedings comply defendant of the summary payment order with the requirements laid down by the provided for by the Code, must be effected Brussels Convention, particularly as outside the territory of that Member State regards consumer protection, the same or territories under its sovereignty. must also apply to proceedings for a summary payment order. Indeed, in its

42. The Court's case-law on whether pro- cedural provisions which have an effect, even though indirect, on intra-Community trade in goods and services fall within the scope of the first paragraph of Article 6 of the Treaty 35 has essentially had the effect 44. On the basis of the foregoing consid- of equating the procedural situation of a erations, it is evident that a provision such Community national who seeks a remedy as that at issue in the main proceedings in civil proceedings that comes within the constitutes discrimination prohibited by the ambit of the exercise of the freedoms first paragraph of Article 6 of the Treaty. guaranteed by Community law with that of nationals of the State in whose courts the proceedings are brought. 36

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Specifically, whereas Italian nationals — as at issue, is incompatible not only generally well as nationals of other Member States with the broad mesh of guarantees as to the established in Italy — who trade with exercise of the fundamental economic free- persons residing in Italy may have recourse doms conferred by Community law, but to the procedure for a summary payment also, specifically, with the structure of the order, Italian nationals — as well as nation- system of legal protection under Commu- als of other Member States established in nity law, a system which 'implies that it Italy — who, clearly exercising rights and must be possible for every type of action freedoms guaranteed by Community law, provided for by national law to be available enter into business relationships with per- for the purpose of ensuring observance of sons residing in another Member State have Community provisions having direct effect, no recourse to that procedure, as a result of on the same conditions concerning the the final paragraph of Article 633 of the admissibility and procedure as would apply Code. were it a question of ensuring observance of national law'. 41

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other Member States, whatever the cur- circumstances of Boussac, which are absent rency in which the claim is expressed'. 43 from the present case. Even if the procedure for a summary payment order were not to be viewed as logically and necessarily following from the guarantee of judicial protection, it is, particularly for small and medium-sized businesses, an important procedure providing swift and inexpensive judicial protection. The significance of the The fact that in that judgment the avail- discrimination concerning the availability ability of ordinary proceedings was con- of that procedure therefore cannot be sidered to be an argument against there reduced by the availability of ordinary being discrimination must, however, be proceedings. Where provisions of national assessed in the context of the judgment. law lay down special procedures, those As the Opinion of Advocate General procedures must be accorded the signifi- Mayras also indicates, the Court in Boussac cance corresponding to their contribution held that the provision of German proce- to the quality of judicial protection provi- dural law at issue was not incompatible ded and be subject to the prohibition of with Article 7 (now Article 6) of the Treaty discrimination, even where their existence as the effects of the discrimination which could not be considered to be an essential actually arose appeared negligible. Advo- requirement in order for that judicial cate General Mayras then observed that protection to be guaranteed. ordinary proceedings in Germany had been simplified and accelerated, that recourse to the procedure for issue of a summary payment order to recover debts expressed in a foreign currency was rare, and finally, that debts expressed in a foreign currency were usually for a larger amount than those expressed in the national currency and consequently, given that the debtor in such cases bore the exchange-rate risk, there was in practice every likelihood of the claim being defended, with all the attendant disadvantages.

52. As regards the freedom to export in particular, the Court has consistently held that 'Article 34 of the Treaty concerns F — Article 34 of the EC Treaty national measures which have as their specific object or effect the restriction of patterns of exports and thereby the estab- lishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a special advantage for national production or for the domestic market of 50. First, it is to be remembered that the State in question'. 45 interpretation of Article 34 of the Treaty is needed in order to establish whether a national provision, such as that at issue in the main proceedings, constitutes a mea- sure having an effect equivalent to a quantitative restriction on the free move- ment of exports but that restriction does not equate either to the restriction on judicial protection of that freedom or to 53. However, in accordance with the case- procedural discrimination caught by the law cited above, in order to examine first paragraph of Article 6 of the Treaty. whether national measures are compatible

It is clear from the foregoing that, as the 54. To the extent that reference is not made French Government points out, it is diffi- either to the guarantee of judicial protec- cult to imagine that Italian exporters would tion with regard to the freedom to export discontinue their exports, from which they or to procedural discrimination affecting profit so greatly, because summary pay- that protection, it is in my view difficult to ment orders cannot be issued. Thus, as both identify perceptible effects on exports that the French Government and the Austrian can be attributed to the final paragraph of Government observe, the restrictive effects Article 633 of the Code. which the provision at issue could have on the free movement of goods, and exports in particular, are far too uncertain and indir- ect to warrant the conclusion that it is liable to hinder trade between Member States. 47

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fluous to examine either whether it favours In other words, it is evident that the Italian domestic trade or whether it can be strengthening of those principles and rules justified on the basis of the exceptions of Community law limits appreciably the provided for by Article 36 of the Treaty. 48 hitherto predominant pull of the Treaty provisions guaranteeing fundamental eco- nomic freedoms. 49

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not arise from measures specifically con- export or to procedural discrimination in cerning patterns of exports. relation to that protection, it is, in my view, difficult to identify clear effects of the last paragraph of Article 633 of the Code on the free movement of capital and pay- ments. 51 On the basis of the arguments referred to, and given the interpretation of Article 34 of the Treaty, the restrictive effects which the provision at issue could G — Article 73b of the EC Treaty have are far too uncertain and indirect to warrant the conclusion that it is liable to block or hinder significantly the movement of capital and payments between Member States. 57. It could be argued, following the Com- mission, that the prohibition of recourse to the procedure for issue of a summary payment order constitutes an obstacle to securing the enforceable court order neces- sary for the recovery of a debt arising in intra-Community trade and that that obsta- cle is not justified either objectively by the principle of proportionality or having 59. It is my view therefore that, as with regard to the measures permitted by Arti- Article 34 of the Treaty, direct recourse to cle 73d of the Treaty. It may also reason- Article 73b of the Treaty is superfluous ably be argued that the restrictive effects given that interpretation of the right to which the provision at issue could have on judicial protection and of the first para- the free movement of capital and payments graph of Article 6 of the EC Treaty is are less hypothetical and indirect than the sufficient to determine whether a national effects it would have on the free movement provision such as that at issue in the main of goods. However, as is clear from the proceedings is compatible with Community observations of the Commission itself, in law. the present case all those possible restric- tions are covered by either the right to judicial protection or the procedural equal- ity guaranteed by the first paragraph of Article 6 of the EC Treaty.

(2) The first paragraph of Article 6 of the EC Treaty is to be interpreted as precluding a procedural provision of a Member State, such as the final paragraph of Article 633 of the Italian Code of Civil Procedure, which prohibits generally the issue of a summary payment order if service on the defendant must be effected outside the territory of that Member State or territories under its sovereignty, where the issue of the summary payment order is connected with the exercise of the fundamental freedoms guaranteed by Community law.

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