CJEC, October 14, 1976, No 29-76

THE COURT

1 By order dated 16 february 1976 received at the court registry on the following 18 march, the oberlandesgericht dusseldorf referred to the court of justice pursuant to the protocol of 3 june 1971 on the interpretation of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as ' the convention ') the question whether, for the purposes of interpreting the concept ' civil and commercial matters ' within the meaning of the first paragraph of article 1 of the convention, the law to be applied is the law of the state in which judgment was given or the law of the state in which proceedings for an order for enforcement were issued.

2 The file shows that the question arose within the context of proceedings under title III, section 2, of the convention in which Eurocontrol asked the competent german courts to authorize the enforcement of an order by the belgian courts that ltu pay to it certain sums by way of charges imposed by Eurocontrol for the use of its equipment and services.

3 Under article 1, the convention ' shall apply in civil and commercial matters whatever the nature of the court or tribunal '. The second paragraph of article 1 states that it shall not apply to ' (1) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; (2) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; (3) social security; (4) arbitration '.

Apart from providing that the convention shall apply whatever the nature of the court or tribunal to which the matter is referred and excluding certain matters from its area of application, article 1 gives no further details as to the meaning of the concept in question.

As article 1 serves to indicate the area of application of the convention it is necessary, in order to ensure, as far as possible, that the rights and obligations which derive from it for the contracting states and the persons to whom it applies are equal and uniform, that the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the states concerned.

By providing that the convention shall apply ' whatever the nature of the court or tribunal ' article 1 shows that the concept ' civil and commercial matters ' cannot be interpreted solely in the light of the division of jurisdiction between the various types of courts existing in certain states.

The concept in question must therefore be regarded as independent and must 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.

4 If the interpretation of the concept is approached in this way, in particular for the purpose of applying the provisions of title III of the convention, certain types of judicial decision must be regarded as excluded from the area of application of the convention, either by reason of the legal relationships between the parties to the action or of the subject-matter of the action.

Although certain judgments given in actions between a public authority and a person governed by private law may fall within the area of application of the convention, this is not so where the public authority acts in the exercise of its powers.

Such is the case in a dispute which, like that between the parties to the main action, concerns the recovery of charges payable by a person governed by private law to a national or international body governed by public law for the use of equipment and services provided by such body, in particular where such use is obligatory and exclusive.

This applies in particular where the rate of charges, the methods of calculation and the procedures for collection are fixed unilaterally in relation to the users, as is the position in the present case where the body in question unilaterally fixed the place of performance of the obligation at its registered office and selected the national courts with jurisdiction to adjudicate upon the performance of the obligation.

5 The answer to be given to the question referred must therefore be that in the interpretation of the concept ' civil and commercial matters ' for the purposes of the application of the convention and in particular of 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.

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

Costs

6 The costs incurred by the government of the federal republic of germany, the government of the italian republic 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 oberlandesgericht dusseldorf, 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 oberlandesgericht dusseldorf, by order dated 16 february 1976, hereby rules:

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.