C-7/98

1. In this case the Bundesgerichtshof (Ger- of national rules of criminal procedure many) has requested a preliminary ruling which preclude a defendant who does not on three questions concerning the interpre- enter an appearance from presenting his tation of Article 27, point 1, of the Con- defence. vention of 27 September 1968 on Jurisdic- tion and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great The national proceedings and the questions Britain and Northern Ireland 1(hereinafter 'the Convention'), and Article II of the Protocol annexed thereto (hereinafter 'the Protocol'). 2. It appears from the order for reference that on 9 July 1982 Mr Krombach, a doctor of German nationality, administered an injection of Cobalt-Ferrlecit to a young girl, Kalinka Bamberski, a French national who was staying at his home in Lindau (Germany), and that she died in Lindau on 10 July 1982. As a result, the German In essence the questions concern the inter- authorities instituted criminal proceedings pretation of the expression 'public policy in against Mr Krombach for manslaughter. the State in which recognition is sought' in The proceedings which lasted several years, Article 27, point 1. The Court is asked to were discontinued for lack of evidence. rule, first, on whether a court of a Con- tracting State may refuse to recognise, on the ground that it is contrary to public policy, a judgment given by a court of another Contracting State on a civil claim Mr André Bamberski, Kalinka's father, introduced in criminal proceedings, where lodged a complaint with the French autho- the latter court based its jurisdiction solely rities against Mr Krombach, whom he held on the victim's nationality and, second, on responsible for his daughter's death. In whether the first court may refuse to 1993 Mr Krombach was committed for recognise the foreign judgment where the trial before the Cour d'Assises, Paris (Paris court of the State of origin refused to allow Assises), on a charge of wilful murder. the accused to defend himself, on the basis Mr Bamberski introduced a civil claim in the proceedings. On 5 June 1993 a sum- mons to appear before that court was * Original language: Italian. served on Mr Krombach at his home in 1 — OJ 1978 L 304, p. 1. Lindau, together with the civil claim for

'(1) May the provisions on jurisdiction form part of public policy within the Mr Kromback also brought an action against the French Republic before the 2 — OJ 1978 L 304, p. 97.

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meaning of Article 27, point 1, of the If Question 2 is also answered in the Brussels Convention where the State of negative: origin has based its jurisdiction as against a person domiciled in another Contracting State (first paragraph of Article 2 of the Brussels Convention) solely on the nationality of the injured (3) May the Court of the State in which party (as in the second paragraph of enforcement is sought take into Article 3 of the Brussels Convention in account under public policy within relation to France)? the meaning of Article 27, point 1, of the Brussels Convention that the court of the State of origin based its jurisdic- tion solely on the nationality of the injured party (see Question 1 above) and additionally prevented the defen- dant from being legally represented (see Question 2 above)?'

If Question 1 is answered in the negative:

The legal context

The Convention expressly states that the national rules of jurisdiction listed in the Article 28 provides that a judgment is not second paragraph of Article 3 are not to be recognised 'if it conflicts with the applicable as against persons domiciled in provisions of Section 3, 4 or 5 of Title II, or another Contracting State. In the case of in a case provided for in Article 59' (first France, the provisions in question are paragraph). In examining those grounds of Articles 14 and 15 of the Civil Code. jurisdiction, 'the court or authority applied to shall be bound by the findings of fact on which the court of the State in which the judgment was given based its jurisdiction' (second paragraph). Subject to the provi- sions of the first paragraph, 'the jurisdic- tion of the court of the State in which the judgment was given may not be reviewed' The Convention then goes on to lay down and, in particular, 'the test of public policy rules of jurisdiction for specific types of referred to in Article 27, point 1, may not action. As regards civil claims for damages be applied to the rules relating to jurisdic- introduced in criminal proceedings, the tion' (third and last paragraph). Convention provides that jurisdiction lies with 'the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil pro- ceedings' (Article 5, point 4). Under Article 31, 'a judgment given in a Contracting State and enforceable in that State shall be enforced in another Con- tracting State when, on the application of any interested party, an order for its enforcement has been issued there'.

9. Article II of the Protocol provides that material time, 3 provided that a foreign 'without prejudice to any more favourable national could be prosecuted before the provisions of national laws, persons dom- French courts for a crime committed iciled in a Contracting State who are being against a French national outside France. prosecuted in the criminal courts of another This provision of the Code of Criminal Contracting State of which they are not Procedure is similar to Articles 14 and 15 nationals for an offence which was not of the Civil Code. In particular, Article 14 intentionally committed may be defended provides that 'l'étranger, même non rési- by persons qualified to do so, even if they dant en France, pourra être cité devant les do not appear in person' (first paragraph) tribunaux français, pour l'exécution des and that 'however, the court seised of the obligations par lui contractées en France matter may order appearance in person; in avec un Français; il pourra être traduit the case of failure to appear, a judgment devant les tribunaux de France, pour les given in the civil action without the person obligations par lui contractées en pays concerned having had the opportunity to étranger envers des Français' [a foreign arrange for his defence need not be recog- national, even if not resident in France, nised or enforced in the other Contracting may be summoned before the French courts States' (second paragraph). for the fulfilment of obligations contracted by him in France with a French national; he may be sued before the French courts for obligations to French nationals contracted by him in foreign countries]. 4 As already mentioned, under the second paragraph of Article 3 of the Convention,such provisions

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may not be applied as against persons contrary to the provision contained in domiciled in a Contracting State. Article 2 of the Convention, found that it had jurisdiction, solely on the basis of the victim's nationality, to entertain an offence committed abroad by a person resident abroad and, second, applied a rule of With regard to the rules on procedure in jurisdiction in criminal matters which has absentia, Article 630 of the Code of Crim- the same effect as that relating to civil inal Procedure provides that an accused matters which (under the second paragraph who fails to appear in person may not be of Article 3 of the Convention) cannot be represented by counsel. 5 applied as against a national of a Contract- ing state.

Substance 12. The problem arising in this case is therefore whether the concept of public policy in Article 27, point 1, covers the The first question rules of jurisdiction of the State in which recognition or enforcement is sought.

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14. It is necessary to refer to Article 28 of and 5 of Title II) or in the specific case of the Convention in order to determine Article 59. 6Those provisions contain man- whether the differences between the rules datory rules for determining special and of jurisdiction of the State in which judg- exclusive jurisdiction of courts of the ment was given and those of the State in Contracting States. In particular, with which recognition or enforcement is sought regard to the present question, any review are contrary to public policy within the of compliance with the general rule of meaning of Article 27, point 1. jurisdiction contained in Article 2 and with the prohibition on applying the national rules of exorbitant jurisdiction referred to in the second paragraph of Article 3 of the Convention is excluded.

6 — Article 59 provides that 'this Convention shall not prevent a Contracting State from assuming, in a convention on the recognition and enforcement of judgments, an obligation towards a third State not to recognise judgments given in other Contracting States against defendants domiciled or habitually resident in the third State where, in cases The provision is clear: a court may not provided for in Article 4, the judgment could only be refuse to recognise a judgment on the founded on a ground of jurisdiction specified in the second paragraph of Article 3 ' . It should be mentioned that the ground that the criteria for conferring transitional provision contained in the second paragraph of Article 54 of the Convention also allows for the possibility jurisdiction on a foreign court differ from of review of its own rules of jurisdiction, in stating that those laid down in national law; not only 'judgments given after the date of entry into force of this Convention in proceedings instituted before that date shall that, it may not even review those criteria, be recognised and enforced in accordance with the provi- sions of Title III if jurisdiction was founded upon rules save only in relation to a possible breach of which accorded with those provided for either in Title II of the provisions of the Convention concern- this Convention or in a convention concluded between the State of origin and the State addressed which was in force ing insurance, consumer contracts or so- when the proceedings were instituted'. called 'exclusive' jurisdictions (sections 3, 4 7 _ OJ 1979 C 59, p. 1, in particular p. 46.

The absence of any review of the substance of the case implies complete confidence in 16. These comments could be taken to the court of the State in which judgment imply that recognition of a judgment may was given; it is similarly to be assumed that be considered to be contrary to public that court correctly applied the rules of policy if the court giving the judgment jurisdiction of the Convention. The absence based its jurisdiction over persons domi- of any review as to whether the court in ciled in the Community on a provision of which the judgment was given had jurisdic- its internal law which is not applicable as tion avoids the possibility that an alleged against them under the second paragraph failure to comply with those rules might of Article 3 of the Convention. Such an again be raised as an issue at the enforce- interpretation of Article 28 would have to ment stage ... be understood as meaning that that article includes in any case among the exceptions to the prohibition on any review of national rules of jurisdiction, the rules on breach of the general rules of jurisdiction laid down in Articles 2 and 3 of the Convention. The last paragraph of Article 28 specifies that the rules of jurisdiction are not matters of public policy within the meaning of Article 27; in other words, public policy is not to be used as a means of justifying a review of the jurisdiction of the court of On the contrary, it seems to me that the origin. This again reflects the Committee's wording of that provision suggests that the desire to limit so far as possible the concept general principle underlying it is that any of public policy.' review of the rules of jurisdiction of the court that gave the judgment is prohibited in order to facilitate so far as possible the free movement of judgments. It follows that the exceptions to this rule (indicated in particular in the first paragraph of Arti- cle 28) must be interpreted restrictively and The Jenard Report also comments, with cannot therefore include cases which are regard to the concept of public policy in not expressly provided for in the Conven- Article 27, point 1, that 'public policy is tion. This conclusion also applies in not to be invoked as a ground for refusing extreme cases where the general rules of

18. Furthermore, in the present case the French criminal court derived its jurisdic- tion to hear the claim for damages from its jurisdiction with regard to the criminal 17. It follows from the foregoing consid- proceedings. Therefore it correctly applied erations that, in matters of recognition and Article 5, point 4, of the Convention. Con- enforcement, a court of a Contracting State sequently, apart from the foregoing discus- cannot regard recognition of a foreign sion of whether the German court may judgment as contrary to the public policy consider that there is a conflict with its of that State on the ground that a court of public policy, the French court did not another Contracting State based its juris- contravene the provisions of the Conven- diction on a rule different from those of the tion concerning jurisdiction in this respect State in which recognition or enforcement either. is sought. This applies even where jurisdic- tion was based on a rule similar to Arti- cles 14 and 15 of the French Civil Code. Although it is true that the second para- graph of Article 3 prohibits the application of those provisions in proceedings as against persons domiciled in a Contracting State, Article 3 is not one of the exceptions to the general rule which precludes any review of compliance with the said provi- 19. In the light of all these considerations, I sions by the court which gave the judg- consider that the reply to the first question ment, the reason being that Article 28 should be that, under Article 28 of the refers only to exceptions involving a con- Convention, the provisions on jurisdiction flict with Articles 7 to 16 of Title II of the do not form part of public policy within the Convention. meaning of Article 27, point 1, of the Convention and therefore a court of a Contracting State cannot regard as con- trary to the rules of public policy of that State the recognition — and therefore the enforcement — of a judgment where the A fortiori the possibility of regarding court of the State of origin gave judgment recognition of a civil judgment, like that on a civil claim in criminal proceedings in the main proceedings, given by a crim- against a person domiciled abroad and inal court which based its jurisdiction on based its jurisdiction solely on the victim's rules of the Code of Criminal Procedure nationality.

The question in the present case is whether According to the referring court, the French such a difference may justify a refusal to rules of procedure which do not allow a enforce the judgment (under Article 27 in defence on behalf of an accused who does conjunction with Article 34 of the Conven- not appear in person are contrary to the tion) on the ground that enforcement principles governing proceedings in absen- would be contrary to public policy in tia in German law. In the German legal German law and whether in any case system, the defence of an absent defendant Article II of the Protocol applies in this is a fundamental right, a form of the more case.

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Breach of State in which recognition is sought' within these principles may disturb the overall the meaning of Article 27, point 1, of the harmony of that system. 8 Generally speak- Convention, that is to say, when the ground ing, it is not for the Community judicature, for refusing recognition of a foreign judg- but for the national court, to identify the ment is that the operative part of the internal provisions which have the force of judgment is at variance with the public principles of 'public policy' in the national policy of the legal system in which the legal system. 9I concur with the Commis- judgment is to take effect.

munity law. procedural rules on the exercise of his rights of defence by a defendant who fails to appear in person. In other words, the referring court wishes to know whether an application for the enforcement of a judg- ment given in criminal proceedings can be refused on the ground that the defendant was not allowed to be represented by counsel. 25. The question referred by the national court is concerned with the conflict between national rules of procedure and a fundamental principle enshrined in the law of the State in which enforcement is sought. Therefore the question is not aimed at

In my 9 — I thetefore share the view of the Advocate General on this opinion, a request for a preliminary ruling point in the opinion delivered on 9 July 1987 in Case by the Court of Justice pursuant to the 145/86 Hoffmann [1988] ECR 645, p. 654, points 16 and 17, that 'clearly it is for the national courts alone to define Protocol on the interpretation of the Con- the scope of public policy'.

determining whether certain provisions of the public policy clause must be construed national law form part of public policy, but restrictively. at determining the limits within which the national court dealing with an application for the enforcement of a foreign judgment may dismiss the application on the ground provided for by Article 27, point 1, of the 26. With the second question, the referring Convention. court asks whether it is possible to regard as contrary to the (international) public policy of the State in which enforcement is sought the enforcement of a judgment given in criminal proceedings in which the defence presented by counsel for the defen- dant was not admitted by reason of his To answer this question, it is necessary to absence. As Article 27, point 1, constitutes begin with the Jenard Report, which states an exception, the court of the State in that the Convention 'seeks to facilitate as which enforcement is sought may not, in far as possible the free movement of connection with the recognition or enforce- judgments, and should be interpreted in ment of the foreign judgment, review the this spirit', and that 'this liberal approach is procedural rules of the State of origin and evidenced ... by a reduction in the number whether they accord with its own, any of grounds which can operate to prevent more than it may review whether they were the recognition and enforcement of judg- correctly applied by the court which gave ments'. With regard to public policy, the the judgment. Any such review would be Report adds that the wording of the public contrary to the aims of the Convention, policy provision makes it clear that 'there which consist precisely in facilitating the are grounds for refusal, not of the foreign free movement of judgments and allowing judgment itself, but if recognition of it is the possibility of refusing an application for contrary to public policy'. It follows that 'it the recognition of judgments only in excep- is no part of the duty of the court seised of tional cases. Furthermore, it would be the matter to give an opinion as to whether contrary to the main purpose of the uni- the foreign judgment is, or is not, compa- form procedure for recognition and enfor- tible with the public policy of its country. cement laid down by the Convention, Indeed, this might be taken as criticism of which is to prevent the court of the State the judgment. Its duty is rather to verify in which enforcement is sought from whether recognition of the judgment would reconsidering the action brought in the be contrary to public policy'. As the Court State of origin. 11 stated in the Hoffmann judgment of 1988, 10 it is clear from these extracts that

applied, it must be allowed to decide that, from the scope of the Convention by the in extreme cases of violation of fundamen- first paragraph of Article 1). tal rights of the parties that are recognised and guaranteed in the State in which enforcement is sought, the recognition or enforcement of the foreign judgment would be contrary to national public policy. However, only a serious and manifest breach could be relevant for this purpose. A review of all the restrictions, including minor ones, on the exercise of the parties' rights would amount to an assessment of the entire national procedure of the State There is no support for the Commission's where the judgment was given recognition view that the existence of a specific rule and enforcement of which is sought. such as Article 27, point 2, on the right of defence of a defendant who fails to appear in person, a rule concerned with possible irregularities in the service of the document which instituted the proceedings, means that no other violations of that right or of other subjective rights of the parties can be relevant. On the contrary, as I have just said, this provision confirms that the rights To preclude such a possibility would of defence must be fully protected by the amount to sacrificing national protection courts in all circumstances, including the against serious breaches of basic rights to enforcement and recognition of foreign the obligation to ensure the free movement judgments. of judgments. In my opinion, it does not appear from the Convention that this obligation on the part of the same courts takes priority over safeguarding the funda- mental principles of the national legal system. On the contrary, the grounds of refusal set out in Article 27 can all be reduced to subjective rights of the parties, mainly of a non-property nature, which the Convention specifically protects by giving them priority over the right to the recogni- 28. In the case at issue here, the defendant tion and enforcement of the foreign judg- Mr Krombach, claimed that his right of ment. In particular, Article 27, point 2, is defence was violated inasmuch as he was concerned with the right of defence of a not allowed to present his defence in the defendant who fails to appear in person, proceedings before the French courts by point 3 relates to the effects on the parties reason of the rule of the French Code of of judgments given by a court and, finally, Criminal Procedure which prohibits a point 4 relates to subjective situations such defendant who fails to appear in person as the status or legal capacity of natural from being represented in court. The refer- persons, rights in property arising out of a ring court observes that the right to be matrimonial relationship, wills and succes- defended is a fundamental right enshrined sion (these fields are expressly excluded in the European Convention for the Protec-

— The applicability of Article II of the Since the right of defence is a fundamental Protocol right recognised in the European Conven- tion on Human Rights and since in the present case the violation of this right is particularly serious in that the defendant had given notice of his intention to defend 29. The first paragraph of Article II of the himself and the court of the State of origin Protocol provides that 'without prejudice refused his request in accordance with the to any more favourable provisions of national rules of procedure, I consider that national laws, persons domiciled in a the court of the State in which enforcement Contracting State who are being prosecuted is sought must in any case guarantee full in the criminal courts of another Contract- judicial protection of the right of defence. It ing State of which they are not nationals for follows that the latter court may dismiss an an offence which was not intentionally application for the enforcement of a judg- committed may be defended by persons ment where the defendant who failed to qualified to do so, even if they do not appear in person was not allowed to appear in person'.

In particular, the Court stated that 'although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental featutes of a fair trial. A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial . . . . It is of capital importance that a defendant should appear, both because The second paragraph of Article II goes on of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with to provide that 'however, the court seised of those of the victim — whose interests need to be pro- tected — and of the witnesses.

graphs 34 and 35). See also the judgments of 22 September 1994 in Case 27/1993/422/501, Pelladoab v Netherlands, defendant who fails to appear in person is and of 21 January 1999 in Case 26103/95 Van Geyseghem not allowed to present a defence, the courts v Belgium. may choose not to depart from the internal

In the judgment in Rinkau 13 the Court, having been asked to give a ruling on the If the provision were interpreted in such a concept of an Offence which was not way as to bring within its scope intentional intentionally committed' in Article II of offences, such as the manslaughter of which the Protocol, held that it covers any offence Mr Krombach was convicted, so as to 'the legal definition of which does not allow the German court to refuse to enforce require, either expressly or as appears from the French judgment on the basis of the the nature of the offence defined, the second paragraph of Article II of the Pro- existence of intent on the part of the tocol, it would amount to overturning the accused to commit the punishable act or case-law and going back on the reasons omission'. The Court reached this conclu- which led to a restrictive interpretation of sion on the basis of the premiss that the Article II. concept of an Offence which was not intentionally committed' is 'an independent concept which must be explained by refer- ence, first, to the objectives and scheme of the Convention'. However, the Court added that, 'in connection with the objec- On the contrary, I consider that the Rinkau 13 — Case 157/80 [1981] ECR 1391, in particular para- judgment should be followed in full. As the graphs 12 to 16. Court observed, the Contracting States,

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rules and which refused to allow the Article 34 of the Convention, it is unneces- accused to present his defence on the sary to reply to the third question. ground that he failed to appear in person, may be considered contrary to the public policy of the State in which enforcement is sought. In any case, I consider that the fact that both the situations referred to in the first and second questions arise in the same case is irrelevant to the question of conflict between national rules of public policy. A As I concluded, in replying to the second violation of public policy is not assessed by question, that an application for the enfor- reference to the extent of the differences cement of a foreign judgment given in between the legal system of the State of breach of the right of defence of an accused origin and that of the State in which who failed to appear in person may be enforcement is sought, but only by refer- refused under article 27, point 1, in con- ence to the nature of the latter's rules and junction with the second paragraph of the seriousness of the violation.

Conclusion

34. In the light of the foregoing observations I propose that the Court reply as follows to the questions referred to it by the Bundesgerichtshof:

(1) Article 2 7 , point 1, of the Brussels Convention, to which the second paragraph of Article 34 refers, must be interpreted as meaning that the enforcement of a judgment cannot be considered contrary to the public policy of the State in which enforcement is sought on the ground that the court of the