CJEC, July 14, 1977, No 9-77

THE COURT

1 By orders dated 22 december 1976, received at the court on 25 january 1977, the bundesgerichtshof referred to the court pursuant to article 3 of 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 ( hereinafter referred to as ' the brussels convention ' ) the question whether under article 56 of the brussels convention the treaty and conventions referred to in article 55 continue to have effect in relation to judgments which do not fall under the second paragraph of article 1 of the brussels convention but are excluded from its scope.

2 The question has arisen in two actions concerned with the enforcement in the federal republic of germany of two judgments by the tribunal de commerce, brussels; the judgments concern claims by Eurocontrol against bavaria and germanair for charges due for the use of the equipment and services of Eurocontrol. In its judgment of 14 october 1976 in case 29-76, lufttransportunternehmen gmbh & co. Kg v Eurocontrol ( 1976 ) ecr 1541, the court on a reference by the oberlandesgericht dusseldorf in an action pending before that court in relation to charges of a similar nature to those in the present case ruled as follows:

' 1 In the interpretation of the concept ' ' civil and commercial matters ' ' for the purposes of the application of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, in particular title iii thereof, reference must not be made to the law of one of the states concerned but, 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;

2 A judgment given in an action between a public authority and a person governed by private law, in which the public authority has acted in the exercise of its powers, is excluded from the area of application of the convention. '

The bundesgerichtshof referred its question to the court with particular regard to that judgment and to the convention between the federal republic of germany and the kingdom of belgium on the mutual recognition and enforcement of judgments, arbitration awards and authentic instruments in civil and commercial matters, signed at bonn on 30 june 1958. A ruling is sought whether and how far the legal concepts laid down by the court in relation to the brussels convention are binding on national courts in respect of the application of a bilateral agreement such as the one mentioned above in matters excluded from the scope of the brussels convention. It appears from the orders for reference that in german law the question whether a case concerns a civil or commercial matter has for purposes of the recognition and enforcement of a foreign judgment traditionally been decided according to the law of the state in which the judgment was given.

3 Article 55 of the brussels convention provides '... This convention shall, for the states which are parties to it, supersede the following conventions concluded between two or more of them... '. The fifth convention to be listed is the said german-belgian convention of 30 june 1958. The first paragraph of article 56 of the brussels convention however makes clear that these conventions ' shall continue to have effect in relation to matters to which this convention does not apply '. The first paragraph of article 1 of the brussels convention provides that it shall apply ' in civil and commercial matters '; on the other hand the german-belgian convention of 30 june 1958, as shown by the first paragraph of article 1 thereof, covers the recognition of ' judgments given in civil and commercial matters ' according to the criteria laid down by that convention itself.

4 The court in the abovementioned judgment of 14 october 1976 has determined the scope of the brussels convention in relation to a judgment of the present kind by interpreting ' civil and commercial matters ' as an independent concept and not as a reference to the internal law of one or other of the states concerned. This interpretation is based on the desire to ensure in relation to community law that the contracting states and parties concerned have equal and uniform rights and duties under the brussels convention. The principle of legal certainty in the community legal system and the objectives of the brussels convention in accordance with article 220 of the eec treaty, which is at its origin, require in all member states a uniform application of the legal concepts and legal classifications developed by the court in the context of the brussels convention.

5 For this reason a national court must not apply the brussels convention so as to recognize or enforce judgments which are excluded from its scope as determined by the court of justice. On the other hand it is not prevented from applying to the same judgments one of the special agreements referred to in article 55 of the brussels convention, which may contain rules for the recognition and enforcement of such judgments. As the first paragraph of article 56 of the brussels convention recognizes, these agreements continue to have effect in relation to judgments to which the brussels convention does not apply. Since article 1 of the protocol of 3 june 1971 gives the court jurisdiction to interpret only the brussels convention and the protocol, it is solely for the national courts to judge the scope of the abovementioned agreements in relation to judgments to which the brussels convention does not apply. The jurisdiction thus left to the national courts is the more readily justifiable in so far as the supplementary application of these bilateral agreements contributes to the objective pursued by the brussels convention of facilitating the recognition and enforcement of judgments between member states.

6 The answer must therefore be that the first paragraph of article 56 of the brussels convention does not prevent a bilateral agreement such as the german-belgian convention, which is the fifth to be listed in article 55, from continuing to have effect in relation to judgments which do not fall under the second paragraph of article 1 of the brussels convention, but to which nevertheless that convention does not apply.

7 Although this result may lead to the same expression in the brussels convention and in a bilateral agreement being interpreted differently, this is due to the different systems in which the concept ' civil and commercial matters ' is used. In relation to a bilateral agreement the acceptance of a classification, made by the court first giving judgment, by the courts of another state could lead to an appropriate result having regard to the fact that the courts of the various states are independent one of another. On the other hand if this occurred in a system such as the brussels convention, the interpretation of which is entrusted to a court common to all parties, it would lead to undesirable divergencies.

Costs

8 The costs incurred by the government of the federal republic of germany and the commission of the european communities, which have submitted observations to the court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the court making the reference, the decision as to costs is a matter for that court.

On those grounds,

The court

In answer to the question referred to it by the bundesgerichtshof by orders dated 22 december 1976, hereby rules:

The first paragraph of article 56 of the convention on jurisdiction and the enforcement of judgments in civil and commercial matters does not prevent a bilateral agreement such as the german-belgian convention, which is the fifth to be listed in article 55, from continuing to have effect in relation to judgments which do not fall under the second paragraph of article 1 of the convention first abovementioned, but to which nevertheless that convention does not apply.