Case Law 1968 Brussels Convention

Article 1 of the 1968 Brussels Convention

 


The term 'civil and commercial matters' [Article 1]

ECJ 15 February 2007 ‘Lechouritou v Dimosio’ (Case C-292/05, ECR 2007 Page I-01519)

The term 'civil matters' within the meaning of Article 1 does not cover a legal action brought by natural persons in a Contracting State against another Contracting State for compensation in respect of the loss or damage suffered by the successors of the victims of acts perpetrated by armed forces in the course of warfare in the territory of the first State.

The term ‘Civil and commercial matters’ does not cover disputes resulting from the exercise of public powers by one of the parties to the case, as it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals and there is all the more reason for such an assessment as regards a legal action for compensation deriving from operations conducted by armed forces, as such operations are one of the characteristic emanations of State sovereignty, in particular inasmuch as they are decided upon in a unilateral and binding manner by the competent public authorities and appear as inextricably linked to States’ foreign and defence policy.

The question as to whether or not the acts carried out in the exercise of public powers that constitute the basis for such proceedings are lawful concerns the nature of those acts, but not the field within which they fall. Since that field as such must be regarded as not falling within the scope of the Convention, the unlawfulness of such acts cannot justify a different interpretation (see paras 34-37, 41-44, operative part).

 

ECJ 5 February 2004 'Frahuil v Assitalia' (Case C-265/02, ECR 2004 Page I-01543)

An action brought by way of legal subrogation against an importer who owed customs duties by the guarantor who paid those duties to the customs authorities in performance of a contract of guarantee under which it had undertaken to the customs authorities to guarantee payment of the duties in question by the forwarding agent, which had originally been instructed by the principal debtor to pay the debt, does not amount to the exercise of powers falling outside the scope of the rules applicable to relationships between private individuals, and must therefore be regarded as coming within the concept of civil and commercial matters within the meaning of the first paragraph of Article 1 of the Convention (see paras 19, 21).

 

ECJ 15 May 2003 ‘TIARD v Staat der Nederlanden’ (Case C-266/01, ECR 2003 Page I-04867)

The term 'civil and commercial matters' in Article 1 covers a claim by which a Contracting State seeks to enforce against a person governed by private law a private-law guarantee contract which was concluded in order to enable a third person to supply a guarantee required and defined by that State, in so far as the legal relationship between the creditor and the guarantor, under the guarantee contract, does not entail the exercise by the State of powers going beyond those existing under the rules applicable to relations between private individuals;

The term 'customs' does not cover a claim by which a Contracting State seeks to enforce a guarantee contract intended to guarantee the payment of a customs debt, where the legal relationship between the State and the guarantor, under that contract, does not entail the exercise by the State of powers going beyond those existing under the rules applicable to relations between private individuals, even if the guarantor may raise pleas in defence which necessitate an investigation into the existence and content of the customs debt (see paras 36, 44, operative part)

 

ECJ 21 April 1993 ‘Sonntag v Waidmann c.s.’ (Case C-172/91, ECR 1993 Page I-01963)

1. A claim for compensation for loss to an individual resulting from a criminal offence, even though made in the context of criminal proceedings, is civil in nature unless the person against whom it is made is to be regarded as a public authority which acted in the exercise of its powers. That is not the case where the activity called in question is the supervision by a state-school teacher of his pupils during a school trip. It follows that "civil matters" within the meaning of the first sentence 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 covers a claim for damages brought before a criminal court against a state-school teacher who, during a school trip, occasioned loss to a pupil as a result of a culpable and unlawful breach of his duties of supervision, even where there is coverage by a scheme of social insurance under public law.

2. The second paragraph of Article 37 of the Convention must be interpreted as precluding any appeal by interested third parties against the judgment given on an appeal against authorization to enforce a judgment given in another Contracting State, even where the domestic law of the State in which enforcement is sought confers on such third parties a right of appeal.

3. Since non-recognition of a judgment given in another Contracting State for the reasons set out in Article 27(2) of the Convention is possible only where the defendant was in default of appearance in the original proceedings, that provision may not be relied upon where the defendant appeared. A defendant is deemed to have appeared for the purposes of Article 27(2) of the Convention where, in connection with a claim for damages made in the context of the criminal proceedings pending before the criminal court, the defendant, through defence counsel of his own choice, answered the criminal charges at the trial but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel.

 

ECJ 16 December 1980 'Netherlands State v Rüffer' (Case 814/79, ECR 1980 Page 03807)

1. The concept 'civil and commercial matters' used in Article 1 of the 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 systems.

2. As the 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 it must be interpreted solely in the light of the division of jurisdiction between the various types of courts existing in certain states; its ambit must therefore be essentially determined by reason of the legal relationships existing between the parties to the action or of the subject-matter of the action.

3. The concept of 'civil and commercial matters' within the meaning of the first paragraph Article 1 of the Convention does not include actions brought by the agent responsible for administering public waterways against the 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 fact that the agent responsible for administering public waterways is seeking to recover those costs by means of a claim for redress before the civil courts and not by administrative process cannot be sufficient to bring the matter in dispute within the ambit of the Convention.

 

ECJ 13 November 1979 'Sanicentral v Collin' (Case 25/79, ECR 1979 Page 03423)

Employment law comes within the substantive field of application of the Convention.

 

ECJ 14 July 1977 'Bavaria v Eurocontrol' (Joined Cases 9 and 10-77)

The principle of legal certainty in the community legal system and the objectives of the Brussels Convention in accordance with article 220 of the EEC Treaty, which is at its origin, require in all Member States a uniform application of the legal concepts and legal classifications developed by the court in the context of the Brussels Convention.

 


Civil status, matrimonial relationship, succession / maintenance obligations [Article 1 (1)]

ECJ 27 February 1997 'Van den Boogaard v Laumen' (Case C-220/95, ECR 1997 Page I-01147)

If the reasoning of a decision rendered in divorce proceedings shows that the provision which it awards is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance and will therefore fall within the scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and by the Convention of 25 October 1982 on the Accession of the Hellenic Republic. On the other hand, where the provision awarded is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention. A decision which does both these things may, in accordance with Article 42 of the Brussels Convention, be enforced in part if it clearly shows the aims to which the different parts of the judicial provision correspond.

It follows that a decision rendered in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her former spouse must be regarded as relating to maintenance and therefore as falling within the scope of the Convention if its purpose is to ensure the former spouse's maintenance. The fact that in its decision the court of origin disregarded a marriage contract is of no account in this regard.

 

ECJ 31 March 1982 'C.H.W. v G.J.H' (Case 25/81, ECR 1982 Page 01189)

The term 'rights in property arising out of a matrimonial relationship' within the meaning of Article 1 of the Convention not only includes 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. The management of the wife's property by her husband must be considered as being closely connected with the proprietary relationship between the spouses flowing directly from their marriage bond. Therefore an application for provisional measures to secure the delivery up of a document in order to prevent the statements which it contains from being used as evidence in an action concerning the management of the wife's property must also be considered to be connected with rights in property arising out of a matrimonial relationship within the meaning of the convention because of its ancillary nature. Therefore the answer to the second question must be that an application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an action concerning a husband's management of his wife's property does not fall within the scope of the convention if such management is closely connected with the proprietary relationship resulting directly from the marriage bond.

 

ECJ 6 March 1980 'Louise de Cavel v Jacques de Cavel' (Case 120/79, ECR 1980 Page 00731)

1. The subject of 'maintenance obligations' falls of itself within the concept of ‘civil and commercial matters’ within the meaning of the first paragraph of Article 1 of the Convention and accordingly comes within the scope of the Convention since it has not been excepted by the second paragraph of that Article.

2. A claim falls within the scope of the Convention where its own subject-matter is one of the matters covered by the Convention even if it is ancillary to proceedings which, because of their subject-matter, do not come within the Convention's sphere of application.

3. The interim or final nature of a judgment is not relevant to whether the judgment comes within the scope of the Convention.

4. The Convention is applicable, on the one hand, to the enforcement of an interlocutory order made by a French court in divorce proceedings whereby one of the parties to the proceedings is awarded a monthly maintenance allowance and, on the other hand, to an interim compensation payment, payable monthly, awarded to one of the parties by a French divorce judgment pursuant to Article 270 et seq of the French civil code.

 


Bankruptcy [Article 1 (2)]

ECJ 22 February 1979 'Gourdain v Nadler' (Case 133/78, ECR 1979 Page 00733)

1. The concepts used in Article 1 of the Convention, serving to indicate its scope, must be regarded as independent concepts which 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.

2. Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings are proceedings founded, according to the various laws of the Contracting Parties relating to debtors who have declared themselves unable to meet their liabilities, insolvency or the collapse of the debtor's creditworthiness, which involve the intervention of the courts culminating in the compulsory "liquidation des biens"' in the interest of the general body of creditors of the person, firm or company or at least in supervision by the courts. If decisions relating to bankruptcy and winding-up are to be excluded from the scope of the Convention they must derive directly from bankruptcy or winding-up and be closely connected with proceedings for the "liquidation des biens" or the "reglement judiciaire".

 


Social security [Article 1 (3)]

ECJ 14 November 2002 ‘Gemeente Steenbergen v Baten’ (Case C-271/00, ECR 2002 Page I-10489)

1. The legal action under a right of recourse to recover already paid out social security by municipality does not concern the application of Regulation No 1408/71. The exclusion of social security from the scope of the Brussels Convention concerns only litigation in that area, that is to say disputes arising out of the relationship between the administration and employers or employees. The Brussels Convention is applicable where the administration exercises a direct right of action against a third party liable for injury or is subrogated as regards that third party to the rights of a victim insured by it, because it is then acting under the rules of the ordinary law.

2. In the light of the foregoing considerations, the reply to the question submitted must be that point 3 of the second paragraph of Article 1 of the Brussels Convention must be interpreted as meaning that the concept of `social security' does not encompass the action under a right of recourse by which a public body seeks from a person governed by private law recovery in accordance with the rules of the ordinary law of sums paid by it by way of social assistance to the divorced spouse and the child of that person.

 


Arbitration [Article 1 (4)]

ECJ 25 July 1991 ‘Marc Rich v Società Italiana Impianti’ (Case C-190/89, ECR 1991 Page I-03855)

By excluding arbitration from the scope of the Convention in Article 1(4) thereof, on the ground that it was already covered by International Conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
Consequently, the abovementioned provision must be interpreted as meaning that the exclusion provided for therein extends to litigation pending before a national court concerning the appointment of an arbitrator, even if the existence or validity of an arbitration agreement is a preliminary issue in that litigation.