CJEC, April 21, 1993, No C-172/91

THE COURT,

1 By order of 28 May 1991 received at the Court on 1 July 1991, the Bundesgerichtshof (Federal Court of Justice) referred to the Court for a preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Journal Officiel 1972 L 299, p. 32), as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, hereinafter "the Convention") a number of questions on the interpretation of the first paragraph of Articles 1, 27(2) and 37(2) of the Convention.

2 Those questions arose in proceedings between Mr V. Sonntag, supported by the Land Baden-Wuerttemberg, and Mr and Mrs H. Waidmann and their son Stefan Waidmann (hereinafter "the parties seeking enforcement"), concerning the enforcement in the Federal Republic of Germany of the civil-law provisions of a judgment given by an Italian criminal court.

3 It appears from the documents before the Court that the parties seeking enforcement are the parents and brother of Thomas Waidmann, a pupil in a school administered by the Land Baden-Wuerttemberg who, on 8 June 1984, during a school trip to Italy, suffered a fatal accident in the mountains. Criminal proceedings were brought against the accompanying teacher, Mr Volker Sonntag, in the Bolzano Criminal Court for causing death by negligence.

4 On 22 September 1986 the parties seeking enforcement joined those criminal proceedings as civil parties seeking an order against the accused teacher for compensation for the loss caused by the accident. The court document drawn up for that purpose was served on Mr Sonntag on 16 February 1987.

5 The trial took place before the Bolzano Criminal Court on 25 January 1988. During the hearing Mr Sonntag was represented by counsel. In the judgment given on the same day Mr Sonntag was found guilty of causing death by negligence and ordered to make a provisionally enforceable payment on account of LIT 20 million to the Waidmann family together with costs. The judgment was served on Mr Sonntag and became final.

6 On application by the parties seeking enforcement, the Landgericht (Regional Court) Ellwangen granted them, on 29 September 1989, an order for enforcement of the civil-law part of the judgment of the Bolzano court.

7 Mr Sonntag appealed to the Oberlandesgericht (Higher Regional Court) against that decision and in the course of those proceedings he served notice of the dispute on the Land Baden-Wuerttemberg, contending in that document that if the decision in the proceedings were unfavourable to him, he was entitled under the law governing the civil service to be relieved by the Land Baden-Wuerttemberg of his obligation to pay damages. The Land Baden-Wuerttemberg intervened in the proceedings in support of the form of order sought by Mr Sonntag.

8 The Oberlandesgericht dismissed the appeal on 20 July 1990 on the ground inter alia that the criminal judgment of the Bolzano court related to a civil matter within the meaning of the first sentence of the first paragraph of Article 1 of the Convention and that the civil claim had been served on Mr Sonntag in sufficient time.

9 Mr Sonntag and the Land Baden-Wuerttemberg appealed to the Bundesgerichtshof against that decision. Both maintained, inter alia, that the criminal judgment of the Bolzano court related to a claim under public law, since the supervision of pupils by Mr Sonntag in his capacity as a civil servant was a matter that fell within the province of administrative law. They also considered that the document of 22 September 1986 giving notice of the civil parties' claims was too vague to be regarded as a "document which instituted the proceedings" within the meaning of Article 27(2) of the Convention.

10 Taking the view that the dispute raised questions regarding the interpretation of the Convention, the Bundesgerichtshof decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

"1. Does the second paragraph of Article 37 of the Convention preclude any appeal by interested third parties against the decision given on the appeal under Article 36 of the Convention, even where the domestic law of the State in which enforcement is sought allows such parties to appeal?

2. (a) Where the holder of a public office who has caused injury to another person by reason of an unlawful breach of his official duties is personally sued by that person for damages, does such an action constitute a civil matter within the meaning of the first sentence of the first paragraph of Article 1 of the Convention?

(b) If the question under (a) is answered in the affirmative: is this also the case where the accident is covered under a social insurance scheme governed by public law?

3. If the defendant is given notice by a procedural document that in criminal proceedings a claim will also be made against him for compensation for material and non-material damage, although the document in question gives no additional details of the civil claim which is to be made, is such a document capable of being treated as a 'document which instituted the proceedings' within the meaning of Article 27(2) of the Convention?

4. Has a defendant appeared for the purposes of Article 27(2) of the Convention where the case concerns a civil claim for damages in connection with charges brought before a criminal court (Article 5(4) of the Convention) and the person against whom enforcement is sought, through counsel of his own choice, answered to the criminal charges but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel?"

11 Reference is made to the Report for the Hearing for a fuller account of the facts of the case before the national court, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

12 In so far as the questions referred by the national court concern the interpretation of a number of provisions of the Convention, the first point for consideration is whether the action for damages which has given rise to the dispute in this case, as described in the order for reference, falls within the scope of the Convention. Accordingly, the second question must be answered first.

The second question

13 The wording of the question submitted and the grounds of the order for reference show that the national court is essentially seeking to ascertain whether "civil matters" within the meaning of the first sentence of the first paragraph of Article 1 of the Convention cover a claim for damages made before a criminal court against a teacher in a State school who, during a school trip, caused injury to a pupil through a culpable and unlawful breach of his duties of supervision, and whether this is so even where cover is provided under a social insurance scheme governed by public law.

14 In order to answer that question, it is necessary first to determine whether a claim for damages made before a criminal court may fall within the scope of the Convention.

15 In the words of the first paragraph of Article 1, the Convention "shall apply in civil and commercial matters whatever the nature of the court or tribunal".

16 It follows from the wording of that provision that the Convention also applies to decisions given in civil matters by a criminal court.

17 It must next be determined whether an action for damages against a teacher in a State school who caused injury to a pupil during a school trip as a result of a breach of his official duties constitutes a "civil matter" within the meaning of the first sentence of the first paragraph of Article 1 of the Convention.

18 As the Court has consistently held (see, in particular, Case 29-76 LTU v Eurocontrol [1976] ECR 1541, paragraphs 3 and 4; Case 133-78 Gourdain v Nadler [1979] ECR 733, paragraph 3; and Case 814-79 Netherlands v Rueffer [1980] 3807, paragraphs 7 and 8), the concept of "civil matters" in Article 1 of the Convention must be regarded as an independent concept to be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems.

19 Even though it is joined to criminal proceedings, a civil action for compensation for injury to an individual resulting from a criminal offence is civil in nature. In the legal systems of the Contracting States the right to obtain compensation for injury suffered as a result of conduct regarded as culpable in criminal law is generally recognized as being a civil-law right. That, moreover, is the conception underlying Article 5(4) of the Convention.

20 It follows from the judgments in the LTU and Rueffer cases, cited above, that such an action falls outside the scope of the Convention only where the author of the damage against whom it is brought must be regarded as a public authority which acted in the exercise of public powers.

21 The first point to be noted in that respect is that the fact that a teacher has the status of civil servant and acts in that capacity is not conclusive. Even though he acts on behalf of the State, a civil servant does not always exercise public powers.

22 Secondly, in the majority of the legal systems of the Member States the conduct of a teacher in a State school, in his function as a person in charge of pupils during a school trip, does not constitute an exercise of public powers, since such conduct does not entail the exercise of any powers going beyond those existing under the rules applicable to relations between private individuals.

23 Thirdly, a teacher in a State school assumes the same functions vis-à-vis his pupils, in a case such as that in point in the main proceedings, as those assumed by a teacher in a private school.

24 Fourthly, the Court has already held, although in a different factual and legal context, in Case 66-85 Lawrie-Blum v Land Baden-Wuerttemberg [1986] ECR 2121, paragraph 28 in conjunction with paragraph 24, that a teacher does not exercise public powers even when he awards marks to pupils and participates in the decisions on whether they should move to a higher class. That must be so a fortiori in relation to the duty of a teacher, as a person in charge of pupils, to supervise them during a school trip.

25 Finally, it should be added that even if the activity of supervising pupils is characterized in the Contracting State of origin of the teacher concerned as an exercise of public powers, that fact does not affect the characterization of the dispute in the main proceedings in the light of Article 1 of the Convention.

26 It follows from all the foregoing considerations that the action for damages brought in the main proceedings against the State-school teacher by the parties seeking enforcement is covered by the term "civil matters" within the meaning of the first sentence of the first paragraph of Article 1 of the Convention.

27 It still remains to be considered whether that interpretation may be invalidated by the fact that the accident giving rise to the action is covered by a social insurance scheme governed by public law.

28 In that respect, it need only be stated that the availability of insurance cover is irrelevant since the basis of the civil claim, that is to say liability in tort or delict, is not affected by the existence of that public insurance.

29 The answer to the second question referred by the national court must therefore be that "civil matters" within the meaning of the first sentence of the first paragraph of Article 1 of the Convention cover an action for damages brought before a criminal court against a teacher in a State school who, during a school trip, caused injury to a pupil through a culpable and unlawful breach of his duties of supervision and that this is so even where cover is provided under a social insurance scheme governed by public law.

The first question

30 By this question the national court seeks essentially to ascertain whether the second paragraph of Article 37 of the Convention must be interpreted as meaning that it precludes any appeal by interested third parties against a judgment given on an appeal brought under Article 36 of the Convention, even where the domestic law of the State in which enforcement is sought confers on such parties a right of appeal.

31 In order to answer that question, it should first be pointed out that according to the first paragraph of Article 36 of the Convention it is the party against whom enforcement is sought who may appeal against the decision authorizing enforcement. According to the second paragraph of Article 37(2) of the Convention, in the Federal Republic of Germany the judgment given on the appeal may be contested only by a Rechtsbeschwerde (appeal on a point of law).

32 Secondly, the Court has found in favour of a narrow interpretation of the concept "judgment given on the appeal" in Article 37(2) of the Convention and has ruled that under the general scheme of the Convention, and in the light of one of its principal objectives, which is to simplify procedures in the State in which enforcement is sought, that provision cannot be extended so as to enable an appeal in cassation to be lodged against a judgment other than that given on the appeal (Case 258-83 Brennero v Wendel [1984] ECR 3971, paragraph 15, and Case C-183-90 Van Dalfsen v van Loon [1991] ECR I-4743, paragraph 19).

33 Finally, the Court made it clear in its judgment in Case 148-84 Deutsche Genossenschaftsbank v Brasserie du Pêcheur [1985] ECR 1981, paragraph 17), that the Convention has established an enforcement procedure which constitutes an autonomous and complete system, including the matter of appeals, and that it follows that Article 36 of the Convention excludes procedures whereby interested third parties may challenge an enforcement order under domestic law.

34 That principle must also be applied to a subsequent appeal brought under Article 37(2) of the Convention. To preclude an interested third party from bringing an appeal under Article 36, whilst allowing that party to intervene at a later stage in the proceedings by means of an appeal under Article 37, would be contrary to the abovementioned system and also to one of the principal objectives of the Convention, which is to simplify the procedure in the State in which enforcement is sought.

35 The answer to the second question referred by the national court must therefore be that the second paragraph of Article 37(2) of the Convention must be interpreted as meaning that it precludes any appeal by interested third parties against a judgment given on an appeal brought under Article 36 of the Convention, even where the domestic law of the State in which enforcement is sought confers on such third parties a right of appeal.

The third and fourth questions

36 By these last two questions, which must be examined together and which concern the interpretation of Article 27(2) of the Convention, the national court seeks to ascertain, first, whether there is a "document which instituted the proceedings" within the meaning of that article where the defendant is given notice by a procedural document that he will be called upon, in the context of criminal proceedings, to make reparation for both material and non-material damage, even though that document does not mention the amount of the claim under civil law that will be made against him. Secondly, the national court seeks to ascertain whether a defendant has appeared for the purposes of Article 27(2) of the Convention where, in the context of a claim for compensation joined to criminal proceedings, the defendant, through counsel of his choice, answered at the trial to the criminal charges but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel.

37 Article 27 lists the conditions to which recognition in a Contracting State of judgments given in another Contracting State is subject. Under point 2 of that article it is provided that recognition must be refused "if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence".

38 As the Court has consistently held, Article 27(2) is intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised (Case 166-80 Klomps v Michel [1981] ECR 1593, paragraph 9, and Case C-123-91 Minalmet v Brandeis [1992] ECR I-5661, paragraph 18).

39 It follows that non-recognition of a judgment for the reasons set out in Article 27(2) of the Convention is possible only where the defendant was in default of appearance in the original proceedings. Consequently, that provision may not be relied upon where the defendant appeared, at least if he was notified of the elements of the claim and had the opportunity to arrange for his defence.

40 In view of the facts in the main proceedings, it should be recalled that, according to the first paragraph of Article II of the Protocol annexed to the Convention, "[w]ithout prejudice to any more favourable provisions of national laws, persons domiciled in a Contracting State who are being prosecuted in the criminal courts of another Contracting State of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person".

41 Where a defendant, through his counsel, answers at the trial to the charges against him and is aware of the civil-law claim made against him in the context of the criminal prosecution, he must in principle be regarded as having appeared in the proceedings taken as a whole, without there being any need to distinguish between the criminal prosecution and the civil-law claim. This, however, does not preclude the possibility for the defendant to decline to appear in the civil action; but if he does not do so his reply to the criminal charges is to be taken as constituting, at the same time, an appearance for the purposes of the civil-law claim.

42 It is apparent from the order for reference that the counsel chosen by the defendant in the main proceedings raised no objections to the civil claim, even during oral argument on that claim.

43 It follows that in this case the defendant cannot be regarded as being in default of appearance and that Article 27(2) of the Convention must therefore be declared inapplicable. Consequently, it is unnecessary to consider whether there was a document instituting the proceedings within the meaning of that provision.

44 The answer to be given to the national court must therefore be that non-recognition of a judgment for the reasons set out in Article 27(2) of the Convention is possible only where the defendant was in default of appearance in the original proceedings. Consequently, that provision may not be relied upon where the defendant appeared. A defendant is deemed to have appeared for the purposes of Article 27(2) of the Convention where, in connection with a claim for compensation joined to criminal proceedings, he answered at the trial, through counsel of his own choice, to the criminal charges but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel.

Costs

45 The costs incurred by the Federal Republic of Germany, the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundesgerichtshof, by order of 28 May 1991, hereby rules:

1. "Civil matters" within the meaning of the first sentence of the first paragraph of Article 1 of the Convention cover an action for compensation for damage brought before a criminal court against a teacher in a State school who, during a school trip, caused injury to a pupil through a culpable and unlawful breach of his duties of supervision; this is so even where cover is provided under a social insurance scheme governed by public law.

2. Article 37(2) of the Convention must be interpreted as precluding any appeal by interested third parties against a judgment given on an appeal under Article 36 of the Convention, even where the domestic law of the State in which enforcement is sought confers on such third parties a right of appeal.

3. Non-recognition of a judgment for the reasons set out in Article 27(2) of the Convention is possible only where the defendant was in default of appearance in the original proceedings. Consequently, that provision may not be relied upon where the defendant appeared. A defendant is deemed to have appeared for the purposes of Article 27(2) of the Convention where, in connection with a claim for compensation joined to criminal proceedings, he answered at the trial, through counsel of his own choice, to the criminal charges but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel.