CJEC, December 16, 1980, No 814-79

1 By judgment of 14 December 1979 which was received at the Court on 17 December 1979 the hoge raad (supreme Court) applied to the Court in proceedings based on article 1 of the protocol 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.

2 That application was ordered in the course of a dispute concerning a claim for redress brought by the Netherlands state against a waterman, the owner of a German river motor vessel, the otrate which on 26 October 1971 collided with the Dutch motor vessel vechtborg in the bight of watum and as a result of that collision sank on the spot.

3 The bight of watum is a public waterway in the mouth of the EMS located in an area over which both the kingdom of the Netherlands and the federal Republic of Germany claim sovereign rights. Co-operation in that waterway between the two bordering states is governed by the EMS-dollard treaty of 8 April 1960. Article 19 (1) (a) of that treaty provides that the kingdom of the Netherlands shall be responsible, in the bight of watum and other places, for river-police functions which, under article 20 (2) (d), include ''removal of wrecks''. Article 21 of the same treaty stipulates further that ''in carrying out river-police functions, each contracting party Commission shall be notified''.

4 In accordance with that treaty and on the basis of the provisions of the Netherlands law on wrecks of 19 June 1934 (hereinafter referred to as the ''wrakkenwet'') the kingdom of the Netherlands had the wreck of the German boat which had sunk in the bight of watum removed by a Netherlands firm. The remains of the boat recovered in that way together with its cargo were sold pursuant to article 6 of the wrakkenwet by public auction in order that the Netherlands state might recover the costs involved in the removal of the wreck. After the proceeds of that sale were deducted from those costs a debit balance remained which the Netherlands state sought to recover from the waterman and owner of the boat in question by the claim for redress referred to above.

5 The district Court of the Hague before which the matter was brought at first instance declared that it had no jurisdiction to entertain the application. Its ground was the finding that owing to the German flag of the boat which sunk the place where the harmful event occurred, namely the wreck of the otrate, must be regarded as the federal Republic of Germany in this case so that jurisdiction to entertain the application lay with German Courts by virtue of article 5 (3) of the Brussels 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 decision by that Court was upheld by the gerechtshof (regional Court of appeal) of the Hague and the Netherlands state appealed in cassation to the hoge raad of the Netherlands. Before ruling on the substance of the matter that Court decided to submit several questions to the Court of justice on the interpretation of the Brussels convention.

The first question

6 In its first question the hoge raad asks the Court to state first of all whether the concept ''civil and commercial matters'' in article 1 of the convention must be construed as including a claim for redress such as that brought in the instant case by the Netherlands state.

7 It is apparent from the case-law of the Court (judgment of 14 October 1976 in case 29-76 ltu (1976) ecr 1541 ; judgment of 14 July 1977 in cases 9 and 10-77 Bavaria-Germanair (1977) ecr 1517 ; judgment of 22 February 1979 in case 133-78 Gourdain (1978) ecr 733) that the concept ''civil and commercial matters ' used in article 1 of the Brussels convention must be regarded as an independent concept which must be construed with 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 sytems.

8 In the light of those considerations the Court has specifically held in that same case-law that whilst certain judgments given in an action between a public authority and a person governed by private law may come within the area of application of the convention that is not the case if the public authority is acting in the exercise of its public authority powers.

9 Such a case is an action for the recovery of the costs involved in the removal of a wreck in a public waterway, administered by the state responsible in performance of an international obligation and on the basis of provisions of national law which, in the administration of that waterway, confer on it the status of public authority in regard to private persons.

10 It is common ground that in this case the Netherlands state had the wreck of the otrate removed in performance of an obligation which was assumed under article 19 (1) (a) and 20 (2) (d) of the EMS-dollard treaty within the framework of the river-police functions conferred on it in that waterway by the said treaty and that consequently it acted in this case as the body invested with public authority.

11 The granting of such status to the agent responsible for policing public waterways, for the purpose of removing wrecks located in those waterways, is furthermore in keeping with the general principles which stem from the corpus of the national legal systems of the member states whose provisions on the administration of public waterways precisely show that the agent administering those waterways does so, when removing wrecks, in the exercise of public authority.

12 In view of those factors the action brought by the Netherlands state before the national Court must be regarded as being outside the ambit of the Brussels convention, as defined by the concept of ''civil and commercial matters'' within the meaning of the first paragraph of article 1 of that convention, since it is established that the Netherlands state acted in the instant case in the exercise of public authority.

13 The fact that in this case the action pending before the national Court does not concern the actual removal of the wreck but the costs involved in that removal and that the Netherlands state is seeking to recover those costs by means of a claim for redress and not by administrative process as provided for by the national law of other member states cannot be sufficient to bring the matter in dispute within the ambit of the Brussels convention.

14 As the Court has stated in the authorities cited above the Brussels convention must be applied in such a way as 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. By that same case-law such a requirement rules out the possibility of the convention's being interpreted solely in the light of the division of jurisdiction between the various types of Courts existing in certain states: on the contrary it implies that the area of application of the convention is essentially determined either by reason of the legal relationships between the parties to the action or of the subject-matter of the action.

15 The fact that in recovering those costs the administering agent acts pursuant to a debt which arises from an act of public authority is sufficient for its action, whatever the nature of the proceedings afforded by national law for that purpose, to be treated as being outside the ambit of the Brussels convention.

16 For those reasons the answer to the first question must be that the concept of ''civil and commercial matters'' within the meaning of the first paragraph of article 1 of the convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters does not include actions such as that referred to by the national Court brought by the agent responsible for administering public waterways against a person having liability in law in order to recover the costs incurred in the removal of a wreck carried out by or at the instigation of the administering agent in the exercise of its public authority.

The other questions

17 The other questions were submitted by the national Court in case the answer to the first question was in the affirmative. As the answer to that question is in the negative there is no further point in considering them.

The costs incurred by the government of the United Kingdom of Great Britain and Northern Ireland 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 on costs is a matter for that Court.

On those grounds,

The Court,

In answer to the questions referred to it by the hoge raad by judgment of 14 December 1979, hereby rules: