CJEC, November 22, 1977, No 43-77

1 By judgment of 7 April 1977, which was received at the Court on 18 April 1977, the Rechtbank van Eerste Aanleg (Court of first instance), Antwerp, referred to the Court of justice under articles 2 (3) and 3 (2) of the protocol of 3 June 1971 two questions on the interpretation of the expression 'ordinary appeal' used in articles 30 and 38 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').

2 The file shows that industrial diamond supplies, the plaintiff in the main action, having its registered office in Antwerp, was ordered by the tribunale civile e penale (civil and criminal Court), Turin, to pay to Luigi Riva, the defendant in the main action, a commercial representative residing in Turin, the sum of lit 53 052 980, as Commission owed by the plaintiff to the defendant in the context of a contractual relationship between the parties, together with interest and legal costs.

3 The judgment, which was given on 23 September 1976 by the Turin Court on appeal from a decision of the pretore of the same city, is at present enforceable.

4 On 25 November 1976 Mr Riva obtained from the Antwerp Court a judgment authorizing the enforcement in Belgium of the judgment of the Turin Court, in accordance with the provisions of article 31 et seq. Of the convention.

5 On 15 December 1976, industrial diamond supplies lodged an appeal against the order for enforcement before the Antwerp Court under articles 36 and 37 of the convention.

6 on 27 December 1976 industrial diamond supplies lodged an appeal in cassation before the Italian Corte Suprema di Cassazione (Supreme Court of appeal) against the judgment given on appeal by the Turin Court.

7 It is not in dispute that that appeal does not have the effect of suspending the enforceability of the judgment given by the Turin Court.

8 It is also established that industrial diamond supplies has not sought a stay of execution in Italy.

9 Industrial diamond supplies requested the Antwerp Court principally to suspend the proceedings relating to the enforcement of the judgment given by the Turin Court until final judgment has been delivered between the parties in Italy.

10 So as to be able to reach a decision on that request, the Antwerp Court submitted to the Court of justice the following two questions on the interpretation of articles 30 and 38 of the convention:

' 1. What appeals are regarded as ' ordinary ' appeals in articles 30 and 38 of the convention of 27 September 1968 or, in other words, to what judgments are articles 30 and 38 of the convention applicable? Or

2. Is the nature of the appeal lodged against the judgment in the state in which that judgment was given to be determined solely in accordance with the law of that state?

'

11 These questions ask in substance whether the expression ' ordinary appeal ' used in articles 30 and 38 of the convention must be understood as a reference to national law or as an independent concept, the interpretation of which must be sought within the convention itself.

12 In the second case, the questions submitted by the Court ask what the meaning of that expression is within the context of the convention.

13 During the procedure the view was expressed that article 30 of the convention, which relates to the recognition and not the enforcement of judgments, is not relevant to the proceedings and that the interpretation requested concerns only the meaning of the expression ' ordinary appeal ' within the context of article 38, which relates to enforcement.

14 There is no need to examine this question, especially since the connexity of the provisions of title iii of the convention make it necessary to interpret the expression in question in the two abovementioned articles in the same way.

The nature of the expression ' ordinary appeal ' as a reference to national law or as an independent concept

15 Under article 30 of the convention, ' a Court of a contracting state in which recognition is sought of a judgment given in another contracting state may stay the proceedings if an ordinary appeal against the judgment has been lodged '.

16 Under the first paragraph of article 38, ' the Court with which the appeal under the first paragraph of article 37 is lodged may, on the application of the appellant, stay the proceedings if an ordinary appeal has been lodged against the judgment in the state in which that judgment was given or if the time for such an appeal has not yet expired; in the latter case, the Court may specify the time within which such an appeal is to be lodged '.

17 According to industrial diamond supplies, it is necessary to classify any appeal considered to be an ordinary appeal in the contracting state in which the judgment the recognition or enforcement of which is sought was given as an ' ordinary appeal ' within the meaning of the abovementioned provisions.

18 Under the law of the Italian Republic, the state in which the judgment in question was given, there is no doubt that an appeal in cassation (ricorso per cassazione) must in fact be considered as an ordinary appeal.

19 This view has been supported by the government of the United Kingdom and by the Commission, which both agree that the nature of an appeal for the purposes of articles 30 and 38 must be determined by reference to the national law of the contracting state in which the original judgment was given.

20 Mr Riva, without contesting the fact that in Italy an appeal in cassation is considered to be an ordinary appeal, takes the view that in any case a judgment which is enforceable in Italy must also be considered as enforceable in Belgium so long as the enforceability of that judgment has not been suspended in the state in which the judgment was given.

21 Finally, it is necessary to note that the government of the federal Republic of Germany expressed the opinion that the expression ' ordinary appeal ' used in articles 30 and 38 must be interpreted within the context of the convention itself, regardless of the classification of appeals by the national law of the state in which the judgment was given.

22 It follows from a comparison of the legal concepts of the various member states of the community that although in some states the distinction between ' ordinary ' and ' extraordinary ' appeals is based on the law itself, in other legal systems the classification is made primarily or even purely in the works of learned authors while in a third group of states this distinction is completely unknown.

23 It is established moreover that in the legal systems in which the distinction between 'ordinary' and 'extraordinary' appeals is acknowledged by legislation or by learned authors, the classification of the various appeals for the purposes of that distinction gives rise to varying classifications.

24 It seems therefore that if the concept of ' ordinary appeal ' were interpreted by reference to a national legal system, whether the legal system of the state in which the judgment was given or that of the state in which enforcement or recognition is sought, it would in certain cases be impossible to classify a specific appeal with the required degree of certainty for the purposes of articles 30 and 38 of the convention.

25 Moreover, reference to a particular national legal system might perhaps oblige the Court required to make a decision under articles 30 and 38 of the convention to classify appeals of the same type inconsistently according to whether they belonged to the legal system of one or other of the contracting states.

26 The effect of the application of that criterion of interpretation would therefore be to create even greater legal uncertainty since article 38 requires the Court before which an order for enforcement of the judgment is sought to take into consideration not only appeals which have been lodged at present but in addition appeals which may be lodged within specific periods.

27 It follows from these considerations that the interpretation of the concept of ' ordinary appeal ' may only be usefully sought within the framework of the convention itself.

28 It is therefore necessary to reply to the national Court that the expression ' ordinary appeal ' within the meaning of articles 30 and 38 of the convention must be determined solely within the framework of the system of the convention itself and not according to the law either of the state in which the judgment was given or of the state in which the recognition or enforcement of that judgment is sought.

The meaning of the expression ' ordinary appeal ' within the framework of the convention

29 The meaning of the expression ' ordinary appeal ' may be deduced from the actual structure of articles 30 and 38 and from their function in the system of the convention.

30 Although, as a whole, the convention is intended to ensure the rapid enforcement of judgments with a minimum of formalities when those judgments are enforceable in the state in which they were given, the specific purpose of articles 30 and 38 is to prevent the compulsory recognition or enforcement of judgments in other contracting states when the possibility that they might be annulled or amended in the state in which they were given still exists.

31 For this purpose articles 30 and 38 reserve to the Court before which a request for recognition or an appeal against a decision authorizing enforcement has been brought in particular the possibility of staying the proceedings where, in the state in which the judgment was given, the judgment is being contested or may be contested within specific periods.

32 According to the convention, the Court before which recognition or enforcement is sought is not under a duty to stay the proceedings but merely has the power to do so.

33 This fact presupposes a sufficiently broad interpretation of the concept of ' ordinary appeal ' to enable that Court to stay the proceedings whenever reasonable doubt arises with regard to the fate of the decision in the state in which it was given.

34 It is possible by applying this criterion alone to decide the outcome of a request for recognition or enforcement based on a judgment which, in the state in which the judgment was given, is at present the subject of an appeal which may lead to the annulment or amendment of the judgment in question.

35 A Court may be required to make a more difficult appraisal whenever a request for a stay of the proceedings is lodged before it under article 38 of the convention when the periods for lodging appeals have not yet expired in the state in which the judgment was given.

36 In that case, it is also necessary to bear in mind, in addition to the criterion based on the possible effect of an appeal, all the relevant considerations arising from the nature and conditions for the application of the judicial remedies in question.

37 Considered from this point of view, the expression ' ordinary appeal ' must be understood as meaning any appeal which forms part of the normal course of an action and which, as such, constitutes a procedural development which any party must reasonable expect.

38 It is necessary to consider that any appeal bound by the law to a specific period of time which starts to run by virtue of the actual decision whose enforcement is sought constitutes such a development.

39 Consequently it is impossible to consider as ' ordinary appeals ' within the meaning of articles 30 and 38 of the convention in particular appeals which are dependent either upon events which were unforeseeable at the date of the original judgment or upon the action taken by persons who are extraneous to the case, and who are not bound by the period for entering an appeal which starts to run from the date of the original judgment.

40 It is for a Court before which a request is submitted under article 36 at a date on which the period for entering an appeal in the state in which the judgment was given has not yet expired to exercise its discretion in this respect.

41 This freedom of discretion is implicit in the actual system of article 38 which gives the Court before which an order for enforcement is sought the power to specify with regard to a party which is opposed to enforcement, although it has not yet taken advantage of the possibility of lodging an appeal in the state in which the judgment was given, a time within which its appeal is to be lodged.

42 It is therefore necessary to reply that, within the meaning of articles 30 and 38 of the convention, any appeal which is such that it may result in the annulment or the amendment of the judgment which is the subject-matter of the procedure for recognition or enforcement according to the convention and the lodging of which is bound, in the state in which the judgment was given, to a period which is laid down by the law and starts to run by virtue of that same judgment constitutes an ' ordinary appeal ' which has been lodged or may be lodged against a foreign judgment.

Costs

43 The costs incurred by the government of the federal Republic of Germany, the government of the united kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

44 Since the proceedings are, so far as the parties to the main action are concerned, 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,

In answer to the questions referred to it by the Rechtbank van Eerste Aanleg of the judicial district of Antwerp by judgment of 7 April 1977, hereby rules:

1. The expression ' ordinary appeal ' within the meaning of articles 30 and 38 of the convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be defined solely within the framework of the system of the convention itself and not according to the law either of the state in which the judgment was given or of the state in which recognition of enforcement of that judgment is sought.

2. Within the meaning of articles 30 and 38 of the convention, any appeal which is such that it may result in the annulment or the amendment of the judgment which is the subject-matter of the procedure for recognition or enforcement under the convention and the lodging of which is bound, in the state in which the judgment was given, to a period which is laid down by the law and starts to run by virtue of that same judgment constitutes an ' ordinary appeal ' which has been lodged or may be lodged against a foreign judgment.