CJEC, March 27, 1979, No 143-78

The court

1 By an order of 22 may 1978, which was received at the court on 19 june 1978, the bundesgerichtshof referred to the court of justice 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 (hereinafter referred to as ' ' the convention ' ') a question relating to the interpretation of subparagraph (1) of the second paragraph of article 1 of the convention which excludes from the scope of the convention the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession.

2 The question was raised in the context of a dispute concerning the enforcement in the federal republic of germany of an order made on 19 january 1977 by the judge of family matters at the tribunal de grande instance, paris, authorizing, as a protective measure in divorce proceedings pending between the parties, the putting under seal of furniture, effects and other objects in the flat at frankfurt-am-main belonging to the parties and the freezing of the assets and accounts of the respondent at two banking establishments in that city.

In reliance on article 31 of the convention the husband, who had commenced proceedings for the divorce, and in whose favour the authorization to freeze the assets was made, applied to the president of the landgericht frankfurt-am-main for an order for the enforcement of the decision of the french court, but that application was dismissed on the ground that the applicant had not produced the documents referred to in article 47 of the convention.

On appeal, the oberlandesgericht frankfurt-am-main also rejected the application, on the ground that the protective measures enforcement of which was sought formed part of divorce proceedings and were therefore excluded from the scope of the convention by subparagraph (1) of the second paragraph of article 1.

3 The case was then brought before the bundesgerichtshof which referred to the court of justice the following question:

' ' Is the convention of the european community of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters inapplicable to an order made by a french judge of family matters simultaneously with proceedings for the dissolution of marriage pending before a french court for putting under seal and freezing assets, since it relates to proceedings incidental to an action concerning personal status or right in property arising out of a matrimonial relationship (subparagraph (1) of the second paragraph of article 1 of the convention)?

' '

4 The commission and the appellant argue that the answer should be given that the proceedings referred to fall within the scope of the convention, while the governments of the united kingdom and of the federal republic of germany and the respondent contend that the answer should be that the convention is inapplicable.

5 It appears from the file on the case that the matters in dispute before the german courts concern, on the one hand, the connexion between the measures ordered by the french judge of family matters and the divorce proceedings and, on the other, the question whether the convention is applicable in view of the proprietary nature of the protective measures in question.

6 In the words of article 1, the convention is to apply in ' ' civil and commercial matters ' '.

Nevertheless, because of the specific nature of certain matters, including ' ' the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession ' ', disputes relating to such matters are excluded from its scope.

7 The enforced settlement on a provisional basis of proprietary legal relationships between spouses in the course of proceedings for divorce is closely linked to the grounds for the divorce and the personal situation of the spouses or any children of the marriage and is, for that reason, inseparable from questions relating to the status of persons raised by the dissolution of the matrimonial relationship and from the settlement of rights in property arising out of the matrimonial relationship.

Consequently, the term ' ' rights in property arising out of a matrimonial relationship ' ' includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any proprietary relationships resulting directly from the matrimonial relationship or the dissolution thereof.

Disputes relating to the assets of spouses in the course of proceedings for divorce may therefore, depending on the circumstances, concern or be closely connected with:

(1) Questions relating to the status of persons; or

(2) Proprietary legal relationships between spouses resulting directly from the matrimonial relationship or the dissolution thereof; or

(3) Proprietary legal relations existing between them which have no connexion with the marriage.

Whereas disputes of the latter category fall within the scope of the convention, those relating to the first two categories must be excluded therefrom.

8 The foregoing considerations are applicable to measures relating to the property of spouses whether they are provisional or definitive in nature.

As provisional protective measures relating to property - such as the affixing of seals or the freezing of assets - can serve to safeguard a variety of rights, their inclusion in the scope of the convention is determined not by their own nature but by the nature of the rights which they serve to protect.

9 Furthermore, in relation to the matters covered by the convention, no legal basis is to be found therein for drawing a distinction between provisional and definitive measures.

That conclusion is not affected by article 24 of the convention whereby: ' ' application may be made to the courts of a contracting state for such provisional, including protective, measures as may be available under the law of that state, even if, under this convention, the courts of another contracting state have jurisdiction as to the substance of the matter ' '.

In fact that provision expressly envisages the case of provisional measures in a contracting state where ' ' under this convention ' ' the courts of another contracting state have jurisdiction as to the substance of the matter and it cannot, therefore, be relied on to bring within the scope of the convention provisional or protective measures relating to matters which are excluded therefrom.

10 It may therefore be concluded that judicial decisions authorizing provisional protective measures - such as the placing under seal or the freezing of the assets of the spouses - in the course of proceedings for divorce do not fall within the scope of the convention as defined in article 1 thereof if those measures concern or are closely connected with either questions of the status of the persons involved in the divorce proceedings or proprietary legal relations resulting directly from the matrimonial relationship or the dissolution thereof.

Costs

11 The costs incurred by the government of the united kingdom, 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.

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 national court, 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 order of 22 may 1978, hereby rules:

Judicial decisions authorizing provisional protective measures - such as the placing under seal or the freezing of the assets of the spouses - in the course of proceedings for divorce do not fall within the scope of the convention of 27 september 1968 on jurisdiction and the enforcement of judgment in civil and commercial matters as defined in article 1 thereof if those measures concern or are closely connected with either questions of the status of the persons involved in the divorce proceedings or proprietary legal relations resulting directly from the matrimonial relationship or the dissolution thereof.