C-266/01

2. The Court is asked to determine, in essence, whether the Brussels Convention applies to an action for payment of customs debts brought by the Netherlands State The Convention shall not apply to: against the surety of national associations authorised to issue TIR carnets and to act as guarantors for the payment of import duties and taxes. (1) the status or legal capacity of natural 1 — Original language: French. persons, rights in property arising out 2 — OJ 1978 L 304, p. 36. The Convention as amended by the of a matrimonial relationship, wills Convention of 9 October 1978 on the Accession of the and succession; Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and — amended — version p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention of 26 May 3 — The second sentence of the first paragraph of Article 1 was 1989 on the Accession of the Kingdom of Spain and the added pursuant to Article 3 of the Convention of 9 October Portuguese Republic (OJ 1989 L 285, p. 1) (hereinafter 'the 1978, cited above, at the time of the Accession to the Brussels Convention'). A consolidated version of the Con- Brussels Convention of the Kingdom of Denmark, Ireland vention is published in the OJ 1990 C 189, p. 2. and the United Kingdom.

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OPINION OF MR LÉGER — CASE C-266/01

(2) bankruptcy, proceedings relating to the TIR carnets 4was signed in Geneva on winding-up of insolvent companies or 14 November 1975. To date, it binds some other legal persons, judicial arrange- 60 contracting parties. It was concluded by ments, compositions and analogous the Council on behalf of the European proceedings; Community pursuant to Regulation (EEC) No 2112/78 of 25 July 1978. 5

TIARD

1999, Article 6(1) of the TIR Convention 12. That guarantee was furnished by the provided: insurance company Préservatrice Foncière TIARD SA, 8 which is established in France. Accordingly, in various documents and declarations, PFA bound itself, as guarantor and joint and several debtor, to pay to the Netherlands State, as its own 'Subject to such conditions and guarantees debt, the import or export duties and taxes as it shall determine, each Contracting imposed, under customs and excise legis- Party may authorise associations to issue lation, on the holder of a TIR carnet issued TIR carnets, either directly or through by the national associations of carriers. 9 corresponding associations, and to act as guarantors.'

authorising associations to issue TIR car- (2) Must proceedings which are brought nets, subject to approval of the guarantee by the State and which have as their provided by them, the Netherlands State subject-matter a private-law guarantee had exercised a public-law power and that contract be regarded as a customs the conclusion by the State of the guarantee matter within the meaning of Article 1 contract with PFA also formed part of the of the Brussels Convention on Jurisdic- exercise of that power. They also con- tion and the Enforcement of judgments sidered that the debts which PFA had to in Civil and Commercial matters on the pay were customs debts. ground that pleas may be put forward by the defendant which necessitate an investigation into, and a ruling on, the existence and content of the customs debts to which that contract relates?' 16. PFA lodged an appeal in cassation against the judgment of the Gerechtshof.

IV — Assessment

I I I— The questions referred for a prelimi- nary ruling 18. Since Article 1 of the Brussels Con- vention excludes customs matters from the scope of the Convention and since the 17. The Hoge Raad der Nederlanden, second question referred for a preliminary doubting the validity of the Gerechtshof's ruling by the national court seeks to analysis, decided to stay proceedings and ascertain whether the main action concerns refer the following questions to the Court such matters, I shall begin my assessment of Justice for a preliminary ruling: with that question.

22. Therefore an order against PFA for payment of those customs debts is the subject-matter of the action and the contract is the cause of the action. 26. The Commission maintains that the case is not a customs matter. In support of its analysis, it invokes, first, the reasons for excluding revenue, customs and adminis- trative matters from the scope of the Brussels Convention. The Commission sub- 23. It is apparent from the case-law of the mits that the second sentence of the first Court of Justice that, within the meaning of paragraph of Article 1 of the Convention, the Brussels Convention, the concept of which establishes that exclusion, was added 'subject-matter of the action' lies in the because certain legal relationships which purpose of the action, and the contractual the mainland States consider as falling relationship or legal rule on which the within the scope of public law are, in action is based are covered by the concept Ireland and the United Kingdom, part of of cause. 12 civil law. It points out that the legal relationship between the guarantor and the beneficiary of the guarantee is civil in nature. 13

contrario, by the judgment in Gourdain. 14 led the draftsmen of the Convention of 9 October 1978, referred to above, to specify, in the first paragraph of Article 1 of the Brussels Convention, that it shall not extend, in particular, to revenue, customs or administrative matters. It is simply 28. I do not share the Commission's view. apparent from the commentaries on the Like the Netherlands Government, I con- Convention of 9 October 1978 that it was sider that the main action is a customs considered necessary to specify those matter within the meaning of Article 1 of matters because the legal systems of the the Brussels Convention and, accordingly, United Kingdom and Ireland do not draw a lies outside its scope. distinction between public-law and private- law matters. It was such a distinction, which is common to the legal systems of the six original Member States, which formed the basis of the reference, with no further clarification, to the concept of 'civil and 29. I base this assessment, first, on the commercial matters' used in the first wording of the first paragraph of Article 1 paragraph of Article 1 of the Brussels of the Brussels Convention and, secondly, Convention to define the scope of the on the case-law of the Court of Justice. Convention. 15 Also, this assessment seems to me to be in accordance with the organisation and objectives of the Brussels Convention.

32. The wording of that article therefore excludes from the scope of the Brussels 30. As regards the wording of the first Convention any case which has as its paragraph of Article 1 of the Brussels subject-matter the payment of customs Convention, it should be pointed out that debts, irrespective of the basis on which it expressly excludes customs matters as the case is brought. such from the scope of the Convention. Nothing in the wording of that provision restricts the exclusion to cases between the public authority and the principal debtor of the customs duties.

37. It is therefore apparent from the case- law that certain types of dispute must be regarded as excluded from the scope of the Brussels Convention, by reason either of the legal relationship between the parties to 35. In the judgment in LTU, the Court held the action or of the subject-matter of the that the Brussels Convention does not action. 19 apply to a dispute which concerns the recovery of charges payable by a person governed by private law to a national or international body governed by public law for the use of equipment and services provided by that body, in particular where such use is obligatory and exclusive. 17 38. That case-law seems to me perfectly capable of being applied to the circum- stances of the main action. The case brought by the Netherlands State against PFA seeks an order against PFA to pay duties and taxes owing as a result of the non-discharge of TIR carnets. The subject- matter of the proceedings therefore relates 36. Similarly, in the judgment in Rüffer, to the recovery of customs duties, excise cited above, the Court held that the concept duties and value added tax payable on of 'civil and commercial matters' within the goods from non-member countries. meaning of the first paragraph of Article 1 of the Brussels Convention does not apply to an action for the recovery of the costs involved in the removal of a wreck in a public waterway, administered by the State responsible in performance of an inter- national obligation and on the basis of 39. When implementing the Community legislation concerning customs matters, when fixing the amount of the excise duties 16 — Case 29/76 LTU [1976] ECR 1541, paragraph 4: Case 814/79 Rüffer [1980] ECR 3807, paragraph 8; Case and value added tax on goods and services C-172/91 Sonntag [1993] ECR I-1963, paragraph 20: and when recovering the sums payable in a n d C a s e C - 1 6 7 / 0 0 Henkel [2002] ECR I-8111, paragraph 26. 1 7 — Paragraph 4. The case concerned route charges which the European Organisation for the safety of air navigation (Eurocontrol) imposes on the possessors of aircraft for the 18 — Paragraph 9. use of air safety services. 19 — LTU, paragraph 4, and Henkel, paragraph 29.

45. In Rüffer, the Court ruled as to whether the fact that recovery of removal costs was 42. It is apparent from the case-law that sought by the Netherlands State in an each of the two conditions justifying exclu- action under a right of recourse and not, sion of certain kinds of dispute from the as required by the national law of other field of application of the Brussels Con- Member States, in administrative proceed- vention, one connected with the nature of ings, was enough to bring the dispute the legal relationship between the parties within the scope of the Brussels Conven- and the other with the subject-matter of the tion. The Court held that that was not the action, is self-sufficient. In other words, case. It considered that the fact that, in since the main action concerns a mani- recovering those costs, the administering festation of the exercise of public powers, agent acts pursuant to a debt which arises whether in respect of the legal relationship from an act of public authority is sufficient between the parties or of the subject-matter for its action, whatever the nature of the of the action, it does not fall within the proceedings afforded by national law for ambit of the Brussels Convention. that purpose, to be treated as being outside the ambit of the Brussels Convention. 21

20 — Paragraph 6. That was a decision of the Cour d'appel de Paris (France) ordering the de facto manager of a French 43. Thus, in Gourdain, cited above, the company, which had been declared bankrupt, to bear a part of the company's debts pursuant to the current French Court held that the ruling for which law on bankruptcy. recognition was sought did not fall within 21 — Paragraph 15.

46. I think that the approach taken in the ambit of the Brussels Convention, that Rüffer is capable of being transposed to a they relate to a manifestation of the exer- case in which, as in this one, a Member cise of public powers, either in respect of State seeks recovery of customs debts the legal relationship between the parties or against the guarantor of the principal of the subject-matter of the action, was debtor on the basis of a private-law guar- confirmed very recently by the Court of antee contract. The court hearing the case Justice in its judgment in Baten. 26 will have to rule on the validity of debts arising from an act of public authority. In that regard, it should be noted that the national court stated that the guarantor could put forward the same grounds of defence relating to the debt as the principal debtor. 49. In that case, the Court had to ascertain whether the concept of 'civil matters' in the first paragraph of Article 1 of the Brussels Convention encompasses an action under a right of recourse by which a public body seeks recovery from a private person of sums paid by it by way of social assistance 47. Furthermore, the view taken in Rüffer to the divorced spouse and the child of that was confirmed in Rich. 22 In that judgment, person. It held that it was necessary to the Court held that if, by virtue of its examine the basis and detailed rules gov- subject-matter, a dispute falls outside the erning the bringing of that action. 27 scope of the Brussels Convention, reference must be made solely to that subject- matter. 23 It inferred from that that the existence of a preliminary issue which the court must resolve in order to determine the dispute cannot, whatever that issue may be, justify application of the Convention. 24 50. I note that, in that case, the action That view was taken again in the judgment brought by the public body was an action in Owens Bank. 25 under a right of recourse against a main- tenance debtor for recovery of a civil debt. The subject-matter of the claim was there- fore a civil matter and, consequently, fell within the scope of the Brussels Conven- tion. It was therefore logical for the Court to consider whether, in respect of the basis 48. Finally, the view that it is sufficient, for and the detailed rules relating to the bring- the main proceedings to be excluded from ing of the action, the public authority had rights and powers derogating from the ordinary law in order to decide whether 22 — Case C-190/89 [1991] ECR I-3855. the action was to be regarded as excluded 23 — Paragraph 26. The Court was confronted with the question whether the exclusion of arbitration, established in point 4 from the scope of the Brussels Convention. of the second paragraph of Article 1 of the Brussels Convention, applies to a dispute in which the initial existence of an arbitration agreement is in issue. 24 — Paragraph 28. 26 — Case C-271/00 [2002] ECR I-10489, paragraph 28. 25 - Case C-129/92 [1994] ECR I-117, paragraphs 34 and 36. 27 — Paragraph 30.

51. I therefore deduce from studying the case-law of the Court of Justice that the fact that the action for payment of customs 54. I deduce that, in those matters, the debts is brought on the basis of a private- draftsmen of the Brussels Convention law guarantee contract cannot affect the intended the exclusive legislative compet- exclusion of that action from the scope of ence of a Member State to be matched by the Brussels Convention on account of its the competence of the administrative and subject-matter. judicial authorities of the same State. When those matters constitute the principal sub- ject-matter of the dispute, it is the courts of that State which are regarded as best placed to settle them. The effective protection of legal positions, which is one of the objec- 52. Finally, this interpretation of Article 1 tives of the Brussels Convention, 30 is there- of the Convention seems to me to be fore guaranteed by the designation of a reinforced by its organisation and objec- national system competent in its entirety tives. and does not require recognition of judg- ments relating to that area. 31

the jurisdiction of the courts of the State 58. It would therefore be contrary to that whose law is applicable to the case. objective of the Brussels Convention to give a definition of the scope of the Convention which would have the effect that an action for payment of the same customs debt would follow different rules of jurisdiction according to whether it was brought against the guarantor or the principal 56. Conversely, the argument put forward debtor. It follows that an action brought by the Commission might have the effect, against the guarantor must, like an action as the Commission itself acknowledges, 32 against the principal debtor, be excluded that an action against the principal debtor from the field of application of the Con- and an action against his guarantor would vention. be brought before the courts of different States although they relate to the same customs debt. Admittedly, solutions may be found, in the Brussels Convention, to pre- vent that situation arising or irreconcilable decisions being delivered. 33However, the possibility of proceedings being brought concurrently before the courts of different 59. In the light of these considerations, I States is one more reason for ruling out an suggest that the Court reply to the second interpretation of Article 1 of the Brussels question raised by the national court that Convention which does not appear to be Article 1 of the Brussels Convention must justified either by the wording of that be interpreted as meaning that proceedings provision or by the case-law or the organi- which are brought by a Member State, on sation of the Convention. the basis of a private-law guarantee contract, constitute a customs matter.

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