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3. social security; 3. if the judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought;

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3. For the purpose of determining the jurisdiction of the courts of the Contracting States, the Convention establishes the domicile of the applicant as the general forum (Article 2), but also makes provision 5. It should also be recalled that Article 55 for certain special jurisdictions. In that of the Convention of Brussels provides: regard, for our present purposes, mention should be made of jurisdiction 'in matters relating to maintenance' whereby the defendant may be called before the court of the place where the maintenance creditor is domiciled or habitually resident. 'Subject to the provisions of the second subparagraph of Article 54, and of Article 56, this Convention shall, for the States which are parties to it, supersede the following conventions concluded between two or more of 4. Under Article 26 of the Convention, them: judgments given in a Contracting State are automatically recognised in the other Con- tracting States 'without any special pro- cedure being required'. However, Article 27 states the express circumstances in which recognition is refused, namely:

— from persons who do not, or do not fully, meet their maintenance obli- gation following a divorce...'.

8. Specifically, that system is based on the provision of general assistance (algemene bijstand) or special assistance (bijzondere bijstand) by the municipality where the person in need is resident. General assist- ance, the sole assistance in question in the 10. Article 94 of the ABW provides: present case, comprises a monthly con- tribution linked to the legal minimum wage which is intended to enable the recipient to cope with essential costs of subsistence. The assistance is financed out of the municipal budget and is not conditional on prior payment of insurance contribu- 'An agreement under which spouses or tions. former spouses stipulate that, after divorce..., they shall in no way be mutually bound by a maintenance obligation, or that 3 — Staatsblad 1995, No 1999. The following is not an official such obligation shall be limited to a specific translation of the provisions in question. amount, shall not preclude recovery [of the

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cost of assistance] from one of the parties pay to his wife a monthly sum of BEF 3 000 and shall be without prejudice to deter- as a contribution towards the maintenance mination of the amount to be recovered'. and education of their daughter, whilst no maintenance payments whatever would be payable as between the spouses themselves.

11. A municipality which decides, under Article 93 of the ABW, to recover the cost 13. Mrs Kil then established herself with of assistance from a third party, must notify her daughter in the municipality of Steen- the person concerned of that decision. bergen (Netherlands). The conditions Under Article 102 et seq. of the ABW, required under the law being fulfilled, the where the third party fails to make pay- municipality decided to grant social assist- ment voluntarily, the municipality may ance payments to Mrs Kil and her daughter bring an action under a right of recourse under the ABW. before the arrondissementsrechtbank (here- inafter 'the district court'), pursuant to the provisions of the Code on Civil Procedure.

17. During the initial proceedings of 17 March 1999, the Court of First Instance of Turnhout declared Mr Baten's objection admissible as regards the payment of main- tenance for his ex-wife ruling that: 'recog- nition and enforcement of the judgment of 19. Thus, requiring an interpretation of a the Breda District Court of 22 July 1996 provision of the Brussels Convention, the concerning the personal maintenance pay- Antwerp Court of Appeal decided, by order ments for Mrs Kil are not possible in view of 27 June 2000, to refer the following of that judgment's incompatibility with the questions to the Court for a preliminary divorce decree by consent of 14 May 1987 ruling: in which the instrument drawn up by the Notary Eyskens on 25 March 1986 was by implication included and confirmed'. At the second proceedings of 25 March 1999, the same district court, further ruling on Mr Baten's objection in relation to the payment of maintenance for his daughter, '1. Is a legal action under a right of recourse held that: 'recognition and enforcement of under the Netherlands Algemene Bijstands- the judgment of the District Court of Breda wet (General Law on Social Assistance) of 22 July 1996 concerning the mainten- brought by a municipality entitled to seek ance payments for the minor daughter recovery against a person liable to pay Tamara are not possible in view of that maintenance, as referred to in Article 93 of judgment's incompatibility with the the Algemene Bijstandswet, a civil matter divorce decree by consent of 14 May 1987 within the meaning of Article 1, first para- in which the instrument drawn up by graph, of the Convention of 27 September Notary Eyskens on 25 March 1986 was 1968 on Jurisdiction and the Enforcement by implication included and confirmed'. of Judgments in Civil and Commercial Matters, and does a judicial decision delivered in such an action come for that reason within the scope of that Conven- tion?

23. However, views diverge when it comes The first question referred for a preliminary to the interpretation of the concept of 'civil ruling matters' in relation to the facts of the present case. On the one hand, the munici- pality of Steenbergen and the United King- dom contend that the facts do not come within the definition of civil matters and 21. By its first question the referring court therefore are not within the scope of the essentially seeks to ascertain whether a Convention; on the other hand, Mr Baten, judicial ruling adopted following an action the Commission, and the other govern- for recovery brought by a municipality ments which submitted observations, con- against an individual under Article 93 tend the opposite to be the case.

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Convention. However, if that were the not be acting in subrogation to the rights of case, argues the United Kingdom Govern- the recipient of the assistance but under its ment, that would also found jurisdiction own independent power under public law. for the courts of the place in which the public authority is established, being the domicile of the maintenance creditor, and thus establish a forum actoris on behalf of the public authority. That would be mani- 26. However, as I have already stated, the festly at odds with the purpose of the Commission radically altered its position at provision, which is intended to protect the the hearing. It contended on that occasion maintenance creditor as the weak party in that the municipality does not in fact have the maintenance relationship and not per- discretion in regard to the recovery of the sons who, on whatever ground, are also cost of assistance from persons who have

failed to fulfil. On the other hand, the Commission submits, under the interpre- tations advocated, the person originally 25. During the written procedure, the liable to pay maintenance is not placed in Commission supported the arguments of a less favourable position because, far from the municipality of Steenbergen and the exercising an independent public power, United Kingdom Government, sharing the the municipality is merely asserting the view that, in granting assistance and decid- same claims as the original creditor. Thus, ing whether to seek recovery thereof, the re melius perpensa, the Commission con- municipality was exercising a public power cludes that the relationship between Mr vested in it within the framework of a Baten and the municipality of Steenbergen

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27. Following the same arguments such circumstances the municipality is advanced by the Commission at the hear- pursuing a claim for compensation for the ing, Mr Baten and the Governments of loss sustained by it as a result of being Austria and Sweden point out that the obliged to provide assistance to the needy action under a right of recourse in question person. Thus, the fact that the possibility of is linked to the obligation on Mr Baten to legal action is provided for under Dutch provide maintenance for Mrs Kil and the public law in no way precludes the munici- daughter. The fact that the right is trans- pality's action which, under Article 103 ferred to a public authority does not, it is ABW, will be brought before the civil claimed, change the nature of that right courts as a claim for compensation, thus because it remains none the less a right to coming within the scope of civil matters maintenance; such transfer is rather an within the meaning of the Brussels Con- application of the general principle vention. In support of that conclusion, the whereby a person is obliged to pay the Dutch Government points out that it may debt of a third party, and who does so, is be inferred from both the Jenard 5 and subrogated to the rights of the creditor Schlosser 6 Reports that exclusion of social against the debtor. security from the scope of the Convention does not include an action under which a public authority seeks recovery of benefits paid by way of social assistance or security from a third party obliged to provide such assistance to the recipient. 28. The Swedish Government adds that, should the Court rule that the action in question comes within the domain of public law, that could undermine the concept of parental responsibility towards children which could be deemed to appertain to the sphere of social responsibility rather than that of individual responsibility. Fur- thermore, the Swedish Government con- tends that exclusion of the rights in ques- Assessment tion from the scope of civil matters would be detrimental to the recognition of such rights abroad, which is in no way desirable and is inconsistent with the aim of the Convention.

and commercial matters referred to in individuals alone are parties. For the avoid- Article 1 of the Convention must be 're- ance of any risk of confusion it is therefore garded as independent and must be inter- necessary, as the Commission correctly preted by reference, first, to the objectives pointed out at the hearing, to identify the and scheme of the Convention and, sec- legal relationship on which the ruling is ondly, to the general principles which stem based and to distinguish it from the other from the corpus of national legal systems'. 7 relationships which merely have a connec- Similarly, I should point out, again as the tion thereto. Court has held, that in order to determine whether a decision comes within the con- cept of civil matters, the nature of the persons party to the legal relationship in question is to a certain extent irrelevant, irrespective of the national law applicable; 8 the decisive criterion is rather whether the 32. To that end, it should be noted at the relationship is based on an act iure imperii outset that the present case originates in a of the public authority. 9 Accordingly, legal relationship, governed by Netherlands determination of this question will entail law, the parties to which are the munici- an assessment of whether the public auth- pality and Mrs Kil (including, at the same ority possesses, in the case in question, time, the municipality and the minor powers which differ from and are broader T. Baten) whose subject-matter is the pay- than those which a private individual, in a ment of social assistance. Thus, the nature similar situation, would enjoy, and in of that relationship may be debated in light particular whether it 'acts in the exercise of the abovementioned criteria for inter- of its power'. 10 preting the Convention. In fact, it is not clear from the case-file whether, under the system established by the ABW, the person in need of assistance has a subjective right to receive assistance from the municipality, which would consequently be in a passive legal position wholly comparable to the position of a private individual obliged to pay maintenance, or whether, conversely, 31. In regard to the present case, it clearly the administration has a certain margin of concerns, directly or indirectly, a number discretion with regard to the decision on of relationships to which, from time to assistance, and therefore is exercising its time, a private individual and the public powers in the case. authority are party, or to which private

the dispute but merely a factor in it which that, under those circumstances, the led to the decision of the Netherlands municipality is not acting in the exercise court; it is with the recognition of that of a public power because, in fact, it has no decision which the present case is con- power in that regard. It does not have the cerned. In actual fact that decision adjudi- power either to determine the parties from cates on the different legal relationship whom it seeks repayment of expenditure between the municipality and Mr Baten incurred, or to specify the extent of the and it is therefore the nature of that benefit payable. Nor does it have any relationship which must be understood in power in regard to recovery of the cost of order for the questions submitted by the assistance: it can only request payment referring court to be answered. from the third party, it cannot impose such a requirement; if the third party refuses to pay, the only option open to the munici- pality is to take legal proceedings, thus giving the third party defendant the oppor- 34. To that end, it is appropriate to begin tunity to defend himself and also, where with the relationship between Mr Baten appropriate, to contest the very existence of and his ex-wife (and between himself and the obligation to provide maintenance or its the daughter) which encompasses the con- extent. tested obligation to provide maintenance. That relationship, whilst not directly form- ing the subject-matter of the decision whose recognition is at issue, is none the less decisive for the purposes of the reply 36. Accordingly, it appears to me that the which the Court is called upon to give to municipality is not exercising as regards the the questions referred to it. That is because, third party any public powers and that the as already stated, once payment has been legal relationship between the two parties is made in the form of algemene bijstand, the no different from the normal relations municipality has a right of recourse against under the law of obligations existing certain third parties, including primarily between parties on the same footing, which persons who fail to meet their family are by definition relationships governed by obligations to minors, or who fail to civil law. The position of the municipality comply with the obligation to provide vis-à-vis the third party liable to pay main- maintenance for their former spouse fol- tenance may in fact be compared to that of lowing divorce. a private individual who, having paid for whatever reason another person's debt, is subrogated to the rights of the original creditor, or to the rights of a person who, outside of any pre-existing relationship 35. In the present case, the municipality of under the law of obligations, has suffered Steenbergen is acting precisely under a right loss as a result of an act imputable to a of recourse against Mr L. Baten in so far as third party. he is obliged to provide maintenance for Mrs Kil and T. Baten. Under Article 93 ABW, such an action may be brought only up to the limit of the amount of mainten- ance which the third party liable to provide 37. On that premiss, there is no need for a maintenance is obliged to pay. It follows technical definition of the nature of the

action in terms of a specific national law position that it comes within the scope of and, in particular, it is otiose to debate, as civil and commercial matters, is a case the parties to the present proceedings have relating to social security since, if so, it done, whether that action should be clas- would not come within the scope of sified under the domestic law of the Article 1, second paragraph, point 3 of Netherlands, Belgium or another applicable the Convention. law in force by reference to private inter- national law as an action by way of subrogation to the rights of the person receiving maintenance or whether it is rather an independent action for compen- sation for loss occasioned to the munici- pality. The only interpretation relevant for present purposes is that concerning the Arguments of the parties Convention and the conditions governing its application; that is to say, it is sufficient to establish that the decision was handed down in a civil action and that such action therefore comes within the scope of 'civil 40. The Governments of the Netherlands matters' within the meaning of Article 1 of and Austria paid particular attention to the Convention. that question. The former makes the initial point that the Convention itself does not define the concept of 'social security' and that that concept must therefore be con- strued in accordance with the principle that 38.1 therefore propose that the reply to the the concepts enshrined in the Convention first question should be that a decision in are to be interpreted independently. To that an action for recovery, pursuant to end, according to the Government of the Article 93 ABW, brought by a municipality Netherlands, it may be useful to refer both against an individual liable to pay main- to information gleaned from international tenance to a person in receipt of assistance law and to Community secondary legis- granted by that municipality, is a decision lation. As regards the former, the Nether- in civil and commercial matters within the lands Government points out that in vari- meaning of Article 1 of the Brussels Con- ous international agreements an express vention of 27 September 1968 on jurisdic- distinction is made between social security tion and the enforcement of judgments in and social assistance. However, as regards civil and commercial matters. the latter, reference is made in particular to Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families mov- ing within the Community11 which makes a distinction between social security pay- The second question referred for a pre- ments and social assistance payments. liminary ruling According to the Netherlands Government,

41. However, according to the same gov- ernment, even if such payments were sub- sumed within the scope of social security, not all legal relationships having a con- nection thereto can be brought within the concept of social security for the purposes of Article 1, second paragraph, point 3. 42. For its part, the Austrian Government That would be true only of disputes con- likewise considers that the objective of both cerning contributions payable by insured the C o n v e n t i o n and R e g u l a t i o n persons, or of social security payments No 1408/71 is to provide increased pro- made to such persons on the occurrence tection for the rights of individuals estab- of certain social risks. Conversely, accord- lished in the Community, and observes that ing to the Netherlands Government (and the rationale for excluding social security the Commission) the contested action con- from the scope of the Convention is cerns a request for reimbursement specifically the fact that a special parallel addressed to a person liable to pay main- scheme exists, in the context of which the tenance and therefore comes fully within concept at issue must be construed by the scope of the Convention, as confirmed reference to the aforementioned regulation by the Jenard and Schlosser reports. The and to the Court's relevant case-law. Thus, former states that: '..., the litigation on under that case-law, a payment comes social security which is excluded from the within the concept of social security where scope of the Convention is confined to it is 'granted, without any individual and disputes arising from relationships between discretionary assessment of personal needs, the administrative authorities concerned to recipients on the basis of a legally and employers or employees. On the other defined position and provided that it con- hand, the Convention is applicable when cerns one of the risks expressly listed in the authority concerned relies on a right of Article 4(1) of Regulation No 1408/71'. 14 direct recourse against a third party respon- In applying those criteria, the Court has, in sible for injury or damage, or is subrogated particular, confirmed that a payment made as against a third party to the rights of an to cover basic subsistence needs, without injured party insured by it, since, in doing reference to any previous periods of pro- so, it is acting in accordance with the fessional activity or insurance contribu- ordinary legal rules.' 12 The latter states tions, does not come within the concept that: 'Legal proceedings by social security authorities against third parties, for 13 — Schlosser report, cited above, p. 92, paragraph 60. 14 —See Cases C-160/96 Molenaar [1998] ECR I-843, para- graph 20 and C-275/96 Kuttsijäwi [1998] ECR I-3419, 12 — Jenard report, cited above, p. 13. paragraph 57.

of social security for the purpose of that in a wider sense. That is primarily for regulation. 15 However, in the present case, reasons of a general nature but also on the Austrian Government submits, the facts grounds specifically related to matters of of the case do not provide sufficient detail social security. in order to enable the payments made by the municipality of Steenbergen to be classified under the abovementioned crite- ria. It therefore concludes, like the United Kingdom Government, that it should be left to the national court to determine, in the light of the general criteria provided, the 44. In general terms, it appears to me in nature of the action which led to the fact very difficult to refute the 'Commu- decisions of the Netherlands court. nity' nature of the Convention and the fact that it cannot be interpreted in isolation from the Court's case-law on cognate concepts to be found in the Treaties or in secondary legislation. I would add that the need for such interpretation to operate in tandem which, in my view, is already clearly warranted by the link established between the Convention and the Commu- nity legal order by Article 220 of the EC Assessment Treaty (now Article 293 EC), 16 acquires even greater validity at the present juncture following the adoption of Council Regu- lation No 44/2001 17 which integrates the Convention into the Community legal order in a yet more systematic and direct 43. It seems reasonable to me as well to manner. proceed on the basis of the notion that, in the absence of an appropriate definition in the Convention itself, the concept of social security within the meaning of the Con- vention should be construed by reference to the relevant provisions of Community law, in particular the abovementioned Regu- 45. On the specific point, therefore, I lation No 1408/71. As I have already consider it difficult, in defining the concept pointed out, the concepts employed by the of social security, to depart from a 'Com- Convention are in principle 'independent' munity' interpretation of that definition as concepts and must therefore be interpreted, referred to above, that is to say from an as the Court has ruled, by reference to the interpretation which is therefore guided by objectives and scheme of the Convention. the cognate concepts in Article 42 EC and But regard must also be had, I should add, Regulation No 1408/71. to the broader context in which the Con- vention is set, that is to say Community law 16 — See Case C-398/92 Mund & Fester [1994] ECR 1-467, in particular paragraphs 10 to 13. 17 — Council Regulation (EC) No 44/2001 of 22 December 15 — Cases C-249/83 Hoeckx [1985] ECR 973, paragraphs 13 2000 on jurisdiction and the recognition and enforcement and 14 and C-122/84 Scrivner [1985] ECR 1027, para- of judgments in civil and commercial matters (OJ 2001 graphs 20 and 21. L 12, p. 1).

49. Turning now to the present case, I should point out once again that the 47. That being the case, I consider it relevant relationship here, in so far as it is reasonable to infer that matters governed the subject-matter of the decision of the by the regulation are excluded from the Netherlands court, is not that between the scope of the Convention since effective two women in need of assistance and the protection of legal rights in that context is municipality, which is rather to do with the guaranteed 'upstream', with the identifica- payment of assistance, but the relationship tion of a national legal order with compet- between the municipality and Mr Baten, ence and does not require judgments to be the subject-matter of which is recovery of circulated. Further, it seems to me that the monies paid by the former as a result of the Jenard report also agrees with that. alleged non-compliance by the latter with Explaining the reasons which led to social security being excluded from the scope of the Convention, that report states that it 18 — Jenard report, cited above, p. 12.

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50. Moreover, I would add that the sol- 52. In view of my earlier comments regard- ution would not be any different even if the ing the relevance of R e g u l a t i o n nature of the relationship of assistance No 1408/71 in interpreting the Conven- between Mrs Kil and T. Baten, on the one tion, I must conclude that the decision hand, and the municipality, on the other, whose recognition is sought does not have were taken into account. In fact I should as its subject-matter, nor does it presup- point out that a benefit granted 'to any pose, a claim within the field of social person who does not have adequate means security within the meaning of Article 1, and is unable to obtain them either by his second paragraph, point 3 of the Brussels own efforts or in any other way..., being a Convention. general social benefit, cannot be classified under one of the branches of social security listed in Article 4(1) of Regulation No 1408/71 and therefore does not con- stitute a social security benefit'. This is because need is the essential criterion for its 53. The reply to the second question application and there is no stipulation as to referred for a preliminary ruling must periods of work, contribution or affiliation therefore be that a decision in an action

19 — See Molenar, cited above, paragraph 20 and Kuttsijärvi, 20 — See Hoeckx, cited above, paragraphs 13 and 14 and cited above, paragraph 57. Scrivner, cited above, paragraph 20.

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under a right of recourse under Article 93 be a decision concerning social security ABW, brought by a municipality against an within the meaning of Article 1, second individual liable to pay maintenance to a paragraph, point 3 of the Brussels Con- person in receipt of assistance granted by vention and is not therefore outside the that municipality, should not be deemed to scope of that Convention.