C-433/01
ECLI:EU:C:2003:231
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BLIJDENSTEIN
OPINION OF ADVOCATE GENERAL TIZZANO delivered on 10 April 2003 1
1. By order of 26 September 2001, the I — Relevant provisions Bundesgerichtshof (Federal Court of Jus- tice) (Federal Republic of Germany) referred to the Court a question for a preliminary ruling concerning the interpre- tation of Article 5(2) of the Brussels Con- vention of 27 September 1968 on jurisdic- The Brussels Convention tion and the enforcement of judgments in civil and commercial matters ('the Brussels Convention' or 'the Convention'). 2 In essence, the national court asks whether a 2. The scope of the Brussels Convention is public body of a Contracting State which determined by Article 1 thereof. The first has provided assistance to a person requi- paragraph of Article 1 provides that the ring support and has therefore been sub- Convention: rogated to the maintenance claim which the beneficiary has against a third party may rely on the special rule of jurisdiction of the courts for the place where the maintenance creditor is domiciled, laid down in Article 5(2) of the Convention, when it '... shall apply in civil and commercial brings an action for recovery against the matters whatever the nature of the court or defaulting maintenance debtor. tribunal.'
3. As is well-known, for the purpose of determining the jurisdiction of the courts of the Contracting States, the Convention establishes the domicile of the defendant as the general forum (Article 2), but also makes provision for some special rules of jurisdiction. These include, for present purposes, the rule on jurisdiction 'in matters relating to maintenance', laid down in Article 5(2), under which the defendant may be sued 'in the courts for the place 1 — Language of the case: Italian. where the maintenance creditor is domi- 2 — OJ 1998 C 27, p. 1. ciled or habitually resident'.
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National provisions is subrogated by statute to the maintenance claim which the student has against his parents. The subrogation takes place up to the amount of the sums paid as a grant and may not exceed, in any event, that part of 4. Under Paragraph 1602 of the Bürger- the income and the assets of the parents liches Gesetzbuch (German Civil Code, which may be allotted for the maintenance 'BGB'), parents are obliged to maintain of the child under the criteria laid down in their children and are therefore bound, the BAföG. under Paragraph 1610(2) of the BGB, to pay for the whole of their cost of living, including the cost of reasonable vocational training.
I I — Facts and procedure
5. The Bundesausbildungsförderungsgesetz (Federal Law on Educational Support, 'the BAföG') entitles a student who does not 8. In 1976 Mr Jan Blijdenstein and his have at his disposal the means necessary for wife, who live in Enschede in the Nether- his maintenance and education the right to lands, adopted a child. a grant paid by the competent grant-paying Land.
9. In the 1993/1994 academic year, the Blijdensteins' daughter began training as a 6. Under Paragraph 11 of the BAföG, the technical pharmacy assistant at a private calculation of the amount of the grant takes college in Munich, Bavaria. From Septem- into account the maintenance obligations ber 1993, she received an education grant of the beneficiary's parents. However, from Freistaat Bayern (Land of Bavaria), should the student prove that his parents the amount of which was calculated with- are not fulfilling those obligations, and that out taking into account the maintenance his training is at risk, Paragraph 36(1) of which the girl should have received from the BAföG provides that the grant is to be her parents, in accordance with Article 36 calculated without taking into account that of the BAföG. maintenance.
10. Freistaat Bayern, subrogated to the 7. In this case, under Paragraph 37(1) of maintenance claim that the girl had against the BAföG, the Land which pays the grant her father, later brought an action for
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compensation against Mr Blijdenstein 14. Freistaat Bayern brought an appeal on before the Amtsgericht (Local Court) of a point of law against that judgment before Munich seeking reimbursement of the grant the Bundesgerichtshof. The Bundesgericht- paid to his daughter for the 1993/94 shof, unsure whether Article 5(2) of the academic year, and judgment was entered Convention was applicable in the case of an against the defendant. action for recovery brought by a public body in a Contracting State, referred the following question to the Court for a preliminary ruling:
11. Freistaat Bayern subsequently com- menced a second action against Mr Blijden- stein seeking reimbursement of the amounts paid for the 1994/1995 and 1995/1996 academic years.
'May a public body in a Contracting State, which has paid an education grant to a trainee for a certain period of time under public law, rely on the special rule of jurisdiction in Article 5(2) of the Conven- 12. This time the respondent disputed the tion of 27 September 1968 on jurisdiction jurisdiction of the Amtsgericht of Munich. and the enforcement of judgments in civil The Amtsgericht, however, dismissed the and commercial matters, when it seeks, plea, relying on Article 5(2) of the Brussels through a statutory subrogation, to enforce Convention, and upheld Freistaat Bayern's in an action for recovery the trainee's claim. maintenance claim against her parents in respect of the period for which the edu- cation grant was paid?'
13. Mr Blijdenstein appealed to the Ober- landesgericht (Higher Regional Court) of Munich which varied the judgment of the Amtsgericht, finding that the court seised had no international jurisdiction. Accord- ing to the appeal court, Article 5(2) of the Brussels Convention was not applicable to 15. During the proceedings before the the case, and Freistaat Bayern's action Court written observations were submitted could be commenced only in the State of by the Commission and the Austrian, the domicile of the respondent, pursuant to German and United Kingdom Govern- Article 2 of the Convention. ments.
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I I I— Legal analysis case-law of the Court 3and to the Jenard 4 and Schlosser 5reports, the Commission concludes that the dispute before the national court falls unequivocally under civil and commercial matters.
Application of the Convention of Bruxelles
18. First of all, and from a general point of view, I must point out that the concept of civil and commercial matters in Article 1 of the Convention must, according to the settled case-law of the Court, be regarded 'as independent and must be interpreted by 16. The United Kingdom asserts, as a reference, first, to the objectives and preliminary remark, that the public auth- scheme of the Convention and, secondly, ority's right of recovery is necessarily to the general principles which stem from derived from the payment of a grant, which the corpus of national legal systems'. 6 is an act in the exercise of its public powers. Again from a general point of view, I also It is therefore not a 'civil and commercial note that, according to the Court, in order matter' within the meaning of Article 1 of to determine whether a decision comes the Convention, which, therefore, does not within the concept of civil matters, the apply to the present case. nature of the persons party to the legal relationship in question is to a certain extent irrelevant, irrespective of the national law applicable; 7the decisive cri- terion is rather whether the relationship is
3 — In particular in Case 29/76 LTU v Eurocontrol [1976] ECR 1541, paragraph 4, and Case C-172/91 Sonntag [1993] ECR I-1963, paragraph 18 et seq. 4 — Report on the Convention on jurisdiction and the enforce- 17. All the other parties submitting obser- ment of judgments in civil and commercial matters (Signed vations, on the other hand, assume that the at Brussels, 27 September 1968) by Mr P. Jenard (OJ 1979 C 59, p. 1 to 65), p. 13. Convention is applicable, ratione materiae, 5 — Report on the Convention on the Accession of the Kingdom to the case pending before the national of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on juris- court. However, only the Commission diction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation submits specific observations in support of by the Court of Justice (Signed at Luxembourg, 9 October this view, noting in particular that the 1978) by Professor Dr P. Schlosser (OJ 1979 C 59, p. 71 to 144), paragraphs 60 and 97. public body in question, in bringing the 6 — LTU v Eurocontrol, cited above, paragraph 3; similarly see action for recovery, is not exercising power Case 133/78 Gourdain v Nadler [1979] ECR 733, para- graph 3; Case 814/79 Netherlands State v Rüffer [1980] of a public nature, but is enforcing a claim ECR 3807, paragraphs 7 and 8, and Sonntag, cited above, governed by rules of ordinary law. Refer- paragraph 18. 7 — See Eurocontrol, paragraph 4, and Rüffer, cited above, ring to the principles developed by the paragraph 8.
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based on an act in the exercise of the public according to which the public body is powers of the public authority. 8 subrogated by statute to the maintenance claim which Miss Blijdenstein has against her parents — are governed by the rules of ordinary law on maintenance obligations.
19. In line with that general approach, the Court stated in the recent Baten case of 14 November 2002 that 'the first para- graph of Article 1 of the Brussels Con- 22. I conclude, therefore, that the dispute vention must be interpreted as meaning pending before the national court falls that the concept of "civil matters" within the concept of civil and commercial encompasses an action under a right of matters in Article 1 of the Convention. recourse whereby a public body seeks from a person governed by private law recovery of sums paid by it by way of social assistance... provided that the basis and the detailed rules relating to the bringing of that action are governed by the rules of the ordinary law in regard to maintenance obligations.' 9 The question submitted by the national court
20. Applied to the present case, this prin- 23. All the parties submitting observations ciple provides, in my opinion, a clear reply propose that the Court give a negative to the objection raised by the United answer to the question submitted by the Kingdom Government. Bundesgerichtshof, since they take the view that a public body which has paid a grant to a person requiring support and has been subrogated to the maintenance claim which that person has against a third party may not rely on the special rule of jurisdiction laid down in Article 5(2) of the Convention 21.1 find that in the present case, the order when it brings an action for recovery for reference indicates that the basis of and against the defaulting maintenance debtor. the detailed rules relating to the exercise of the right of recourse of Freistaat Bayern —
8 — See Eurocontrol, paragraph 4, and Sonntag, paragraph 20. Sec also the Opinion of Advocate General Darmon in Sonntag, point 43. 24. I must state at the outset that this 9 — Case C-271/00 Gemeente Steenbergen v Baten [2002] ECR I-10489, paragraph 37. conclusion appears convincing.
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25. First of all I must point out — as the 28. It is true that the provision also pursues German and United Kingdom Govern- other objectives, such as that of allowing a ments and the Commission have done — correlation between applicable law and that, according to settled case-law, in order jurisdiction, or that of allowing a dispute to ensure that the Convention is uniformly to be judged by the courts which appear applied in all the Contracting States, the best placed to assess the maintenance concepts used therein must be interpreted requirements of the maintenance applicant. independently, by reference to the system and objectives of the Convention. 10 In the same way, the Court has also observed on several occasions that the provisions which lay down special rules of jurisdiction must be interpreted restrictively, since they remove the defendant from his natural forum. 11 29. Those are, however, clearly aims of a secondary nature, which are ancillary to those stated above and which in some way reinforce the choice of the Contracting Parties to the Convention. But alone they would not be and are not sufficient to 26. This principle should therefore also be justify the choice of the rule of special used to determine the scope of the special jurisdiction and the derogation from the rule of jurisdiction in maintenance matters general rule of the forum of the defend- in Article 5(2) given that this also derogates ant. 12 from the general rule of the domicile of the defendant.
27. That said in common with all the 30. The judgment in Farrell also supports parties submitting observations, I note that this view. After having confirmed that the principal objective of the provision in Article 5(2) must be interpreted in the light question is to offer the weaker party in of the objectives which this provision pur- maintenance proceedings, the maintenance sues in the scheme of the Convention, the creditor, the advantage of a forum near to Court stated that 'the derogation provided him and therefore effective access to the for in Article 5(2) is intended to offer the legal system. maintenance applicant, who is regarded as the weaker party in such proceedings, an alternative basis of jurisdiction. In adopting 10 — See, inter alia, Case C-89/91 Sbearson Lehman Mutton that approach, the drafters of the Con- [1993] ECR I-139, paragraph 13, and the cases cited therein. 11—See Case C-412/98 Group Josi [2000] ECR I-5925, paragraph 49; Case C-51/97 Réunion Européenne and Others [1998] ECR I-6511, paragraph 16; Case C-269/95 12 — See Geimer, R., Schütze, R.A., Europäisches Zivilver- Benincasa [1997] ECR I-3767, paragraph 13; Shearson fahrensrecht, Munich, 1997, p. 144, note 108; Kropholler, Lehman Hutton, cited, paragraphs 15 and 16; Case J., Europäisches Zivilprozeßrecht, 7th Ed., Heidelberg, C-26/91 Handle [1992] ECR I-3967, paragraph 14. 2002, p. 147.
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vention considered that that specific objec- therein may be relied on only by the tive had to prevail over the objective of the maintenance creditor, since it aims essen- rule contained in the first paragraph of tially to guarantee effective access to the Article 2, which is to protect the defendant legal system for the party dependent on as the party who, being the person sued, is maintenance payments to meet his basic generally in a weaker position.' 13 needs.
31. I would add that this interpretation is also supported by authority in the explana- 34. On the other hand, as all the parties tory report to the 1978 Accession Con- submitting observations have rightly vention by Professor Schlosser. pointed out, a public body which has paid a grant to a person requiring support is not in a position of weakness vis-à-vis the maintenance debtor against whom it brings an action for recovery, and cannot there- fore make use of the special forum of the domicile of the maintenance creditor pro- vided for in the provision concerned. 15 32. After having made clear that an action in which a public body which has paid maintenance to a person requiring support seeks to recover against the defaulting maintenance debtor comes within the scope of application of the Convention, para- graph 97 of the report states that 'it is not, however, the purpose of the special rules of 35. The reply to the question referred by jurisdiction in Article 5(2) to confer juris- the Bundesgerichtshof should therefore be diction in respect of compensation claims that the special rule of jurisdiction in on the courts of the domicile of the main- Article 5(2) of the Brussels Convention of tenance creditor or even those of the seat of 27 September 1968 on jurisdiction and the the public authority'. 14 enforcement of judgments in civil and commercial matters, as subsequently amended, does not apply where a public body which has paid a grant to a person requiring support and has been subrogated to the maintenance claim which that person has against a third party brings an action 33. In my view, therefore, Article 5(2) of for recovery against the defaulting main- the Convention must be interpreted as tenance debtor. meaning that the special rule of jurisdiction
15 — See again Geimer and Schütze, cited, p.145, note 111; Kropholler, cited, p. 148; Mari, L-, II diritto processuale 13 — Case C-295/95 Farrell [1997] ECR I-1683, paragraph 19. avite della Convenzione di Bruxelles, I, II sistema della 14 — Schlosser Report, cited above, paragraph 97. competenza, Padua, 1999, p. 373.
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IV — Conclusion
36. In the light of the foregoing I propose that the Court should:
'Declare that the special rule of jurisdiction in Article 5(2) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as subsequently amended, does not apply where a public body which has paid a grant to a person requiring support and has been subrogated to the maintenance claim which that person has against a third party brings an action for recovery against the defaulting maintenance debtor.'
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