CJEC, 3rd chamber, October 22, 1981, No 27-81

The court

1 By a judgment of 26 november 1980, which was received at the court on 16 february 1981, the cour d ' appel (court of appeal), versailles, referred to the court for a preliminary ruling under 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 a question as to the interpretation of article 18 of the convention.

2 The question was asked within the framework of appeal proceedings instituted by societe anonyme etablissements Rohr (hereinafter referred to as ' ' Rohr ' '), having its registered office at sarcelles, france, against a writ of execution issued by the president of the tribunal de grande instance (regional court), pontoise, on 5 june 1979. By that writ the court rendered enforceable, on the application of Ossberger turbinenfabrik (hereinafter referred to as ' ' Ossberger ' '), having its place of business at weissenburg, in the federal republic of germany, a provisionally enforceable judgment of the landgericht (regional court) ansbach of 15 december 1978, together with a taxing order in respect of the costs of that court of 5 february 1979.

3 The judgment in question was given by the landgericht ansbach following proceedings instituted by Ossberger against Rohr for payment of various accounts for goods supplied by Ossberger. Since Rohr merely argued before the landgericht that the court had no jurisdiction ratione loci and did not submit any defence on the substance, and since the landgericht considered that it had jurisdiction in accordance with article 17 of the convention by reason of a clause conferring jurisdiction contained in Ossberger ' s general conditions of sale, Rohr was ordered to settle the said accounts and pay the costs. Rohr submitted an appeal to the oberlandesgericht nurnberg (higher regional court, nuremberg), again relying upon the objection of lack of jurisdiction without submitting any defence on the substance; that appeal was dismissed by a judgment of 13 june 1979 since the oberlandesgericht nurnberg considered that the landgericht had jurisdiction under the provisions of the convention and that Rohr had still failed to submit a defence on the substance in the course of the appellate procedure. A further appeal on a point of law by Rohr the bundesgerichtshof (federal court of justice) was dismissed as inadmissible by an order of 19 march 1980 because the grounds for the appeal were not stated within the prescribed time-limits.

4 Rohr argued before the cour d ' appel, versailles, that the recognition and enforcement of the judgments of the landgericht ansbach were contrary to public policy within the meaning of article 27 (1) of the convention: since article 18 of the convention made it impossible for Rohr to submit a defence on the substance before the german courts without losing the right to raise an objection of lack of jurisdiction, the fact that these courts did not restrict themselves to giving a ruling on jurisdiction but also give judgment on the substance of the case constituted a manifest infringement of the rights of the defence and thereby of public policy in france. Ossberger contended that article 18 of the convention, like the provisions of german law on civil procedure, did not prevent Rohr from submitting a defence on the substance but that Rohr voluntarily refrained from doing so.

5 The cour d ' appel, versailles, since it considered that this case raised a question concerning the interpretation of the convention, referred to the court a preliminary question which is essentially concerned to establish whether article 18 of the convention permits a defendant who contests the jurisdiction of the court before which an application has been brought to submit at the same time in the alternative a defence on the substance of the action without thereby losing his right to raise an objection of lack of jurisdiction.

6 The italian government and the commission of the european communities have argued that that question must be answered in the affirmative.

7 The court of justice has had occasion to give a preliminary ruling on a similar question in its judgment of 29 june 1981 (elefanten schuh gmbh v jacqmain, case 150-80, (1981) ecr 1671). In that judgment the court declared: ' ' although differences between the different language versions of article 18 of the convention appear when it is sought to determine whether, in order to exclude the jurisdiction of the court seised, a defendant must confine himself to contesting that jurisdiction, or whether he may on the contrary still achieve the same purpose by contesting the jurisdiction of the court as well as the substance of the claim, the second interpretation is more in keeping with the objectives and spirit of the convention. In fact under the law of civil procedure of certain contracting states a defendant who raises the issue of jurisdiction and no other might be barred from making his submissions as to the substance if the court rejects his plea that it has no jurisdiction. An interpretation of article 18 which enabled such a result to be arrived at would be contrary to the right of the defendant to defend himself in the original proceedings, which is one of the aims of the convention. ' '

8 This case has disclosed no factor of such a kind as to affect these findings. Accordingly the answer to the question submitted must be that article 18 of the convention of 27 september 1968 must be interpreted as meaning that it allows the defendant not only to contest the jurisdiction but to submit at the same time in the alternative a defence on the substance of the action without, however, losing his right to raise an objection of lack of jurisdiction.

Costs

9 The costs incurred by the government of the italian republic and by 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 on costs is a matter for that court.

On those grounds,

The court (third chamber)

In answer to the question referred to it by the cour d ' appel, versailles, by judgment of 26 november 1980, hereby rules:

Article 18 of the convention of 27 september 1968 must be interpreted as meaning that it allows the defendant not only to contest the jurisdiction but to submit at the same time in the alternative a defence on the substance of the action without, however, losing his right to raise an objection of lack of jurisdiction.