Case Law 1968 Brussels Convention

Article 31 of the 1968 Brussels Convention

ECJ 11 May 2000 ‘Renault v Maxicar’ (Case C-38/98, ECR 2000 p. I-02973)

The Corte d'Appello, seised of an appeal against a decision dismissing an application for a declaration of enforceability on the basis of the first paragraph of Article 40 of the 1968 Brussels Convention must be regarded as sitting in an appellate capacity and thus having power under Article 2(2) of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention, to request the Court of Justice to give a preliminary ruling on a question of interpretation of the Convention.

Although in Italy the two stages of the procedure for a declaration of enforceability provided for under Article 31 et seq. of the Convention take place before the Corte d'Appello, that coincidence, which is the result of the choice made by the Italian Republic, cannot be permitted to obscure the fact that the procedure under the first paragraph of Article 32, concerning the application for a declaration of enforceability, differs from that provided for in the first paragraph of Article 40. In the first case, the Corte d'Appello rules, in accordance with the first paragraph of Article 34, without the party against whom enforcement is sought being able at this stage of the procedure to submit observations. In the second case, by contrast, the party against whom enforcement is sought must be summoned to appear before the Corte d'Appello as required by the second paragraph of Article 40 ( see paras 27-28).

ECJ 29 April 1999 'Coursier v Fortis' (Case C-267/97, ECR 1999 p. I-02543)

The term "enforceable" in the first paragraph of Article 31 of the 1968 Brussels Convention is to be interpreted as referring solely to the enforceability, in formal terms, of foreign decisions and not to the circumstances in which such decisions may be executed in the State of origin. It is for the court of the State in which enforcement is sought, in appeal proceedings against the order for enforcement of such a decision brought under Article 36 of the Convention, to determine, in accordance with its domestic law, including the rules of private international law, the legal effects in its territory of another decision given in the State of origin in relation to a court-supervised liquidation, a matter not falling within the scope of the Convention.

ECJ 4 October 1991 ‘Van Dalfsen c.s. v Van Loon and Berendsen’ (Case C-183/90, ECR 1991 p. I-04743)

The first paragraph of Article 38 of the Convention is to be strictly interpreted so as not to prejudice the effectiveness either of Article 31, which lays down the principle that a judgment given in a Contracting State and enforceable in that State may be enforced in another Contracting State even if it has not yet become res judicata, or of the third paragraph of Article 34, which prohibits the courts of the State in which enforcement is sought from reviewing the substance of the judgment given in the first State.

Hence the first paragraph of Article 38 of the Convention is to be interpreted as meaning that a court with which an appeal is lodged against an order for the enforcement of a judgment given in another Contracting State may take into consideration, in a decision concerning an application for the proceedings to be stayed under that paragraph, only such submissions as the appellant was unable to put before the court of the State in which the judgment was given.

ECJ 4 February 1988 'Hoffmann v Krieg' (Case 145/86, ECR 1988 p. 00645)

A foreign judgment which has been recognized by virtue of Article 26 of the 1968 Brussels Convention must in principle have the same effects in the state in which enforcement is sought as it does in the state in which judgment was given. A foreign judgment whose enforcement has been ordered in a Contracting State pursuant to Article 31 of the Convention and which remains enforceable in the State in which it was given must not continue to be enforced in the state where enforcement is sought when, under the law of the latter State, it ceases to be enforceable for reasons which lie outside the scope of the Convention. The Convention does not preclude the court of the State in which enforcement is sought from drawing the necessary inferences from a national decree of divorce when considering the enforcement of the foreign order made in regard to maintenance obligations between spouses

ECJ 15 July 1982 ‘Pendy Plastic v Pluspunkt’ (Case 228/81, ECR 1982 p. 02723)

The court of the State in which enforcement is sought may, if it considers that the conditions laid down by Article 27(2) of the 1968 Brussels Convention are fulfilled, refuse to grant recognition and enforcement of a judgment even though the court of the State in which the judgment was given regarded it as proven, in accordance with the third paragraph of Article 20 of that Convention in conjunction with Article 15 of the Hague Convention of 15 November 1965, that the defendant, who failed to enter an appearance, had an opportunity to receive service of the document instituting the proceedings in sufficient time to enable him to make arrangements for his defence.

ECJ 30 November 1976 ’De Wolf v Cox’ (Case 42-76, ECR 1976 p. 01759)

The provisions of the 1968 Brussels Convention prevent a party who has obtained a judgment in his favour in a Contracting State, being a judgment for which an order for enforcement under Article 31 of the Convention may issue in another Contracting State, from making an application to a court in that other State for a judgment against the other party in the same terms as the judgment delivered in the first State. The fact that there may be occasions on which, according to the national law applicable, the procedure set out in Articles 31 et seq. of the Convention may be found to be more expensive than bringing fresh proceedings on the substance of the case does not invalidate these considerations.

Case Law 1968 Brussels Convention

Article 32 of the 1968 Brussels Convention

ECJ 11 May 2000 ‘Renault v Maxicar’ (Case C-38/98, ECR 2000 p. I-02973)

The Corte d'Appello, seised of an appeal against a decision dismissing an application for a declaration of enforceability on the basis of the first paragraph of Article 40 of the 1968 Brussels Convention must be regarded as sitting in an appellate capacity and thus having power under Article 2(2) of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention, to request the Court of Justice to give a preliminary ruling on a question of interpretation of the Convention.

Although in Italy the two stages of the procedure for a declaration of enforceability provided for under Article 31 et seq. of the Convention take place before the Corte d'Appello, that coincidence, which is the result of the choice made by the Italian Republic, cannot be permitted to obscure the fact that the procedure under the first paragraph of Article 32, concerning the application for a declaration of enforceability, differs from that provided for in the first paragraph of Article 40. In the first case, the Corte d'Appello rules, in accordance with the first paragraph of Article 34, without the party against whom enforcement is sought being able at this stage of the procedure to submit observations. In the second case, by contrast, the party against whom enforcement is sought must be summoned to appear before the Corte d'Appello as required by the second paragraph of Article 40 (see paras 27-28).

ECJ 17 June 1999 ‘Unibank v Flemming’ (Case C-260/97, ECR 1999 p. I-03715)

An acknowledgment of indebtedness enforceable under the law of the State of origin whose authenticity has not been established by a public authority or other authority empowered for that purpose by that State does not constitute an authentic instrument within the meaning of Article 50 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

The authentic nature of such instruments must be established beyond dispute so that the court in the State in which enforcement is sought is in a position to rely on their authenticity, since the instruments covered by Article 50 are enforced under exactly the same conditions as judgments.

ECJ 28 March 1984 ‘Von Gallera v Maître’ (Case 56/84, ECR 1984 p. 01769)

1. By order of 17 January 1984, received at the court on 1 March 1984, the first chamber of the tribunal de Grande Instance, Versailles, referred to the court for a preliminary ruling a question on the interpretation of Article 32 of the 1968 Brussels Convention.

2. Article 32 of the Convention, which deals comprehensively with the power to grant an order for enforcement in respect of decisions of the type covered by the convention given in a Contracting State, provides that application must be made, “in France, to the presiding judge of the tribunal de Grande Instance”, which, in accordance with Article 34 of the Convention, must give its decision without delay and without the party against whom enforcement is sought being entitled, at that stage of the proceedings, to make any submissions on the application.

3. In the main proceedings the first chamber of the tribunal de Grande Instance, Versailles, has before it an application for an order for the enforcement of a decision, dated 26 March 1979, of a court in Lauterbach, Federal Republic of Germany, ordering Gisele Maître to pay, as a consequence of her divorce, maintenance in respect of her son Christoph von Gallera. During the proceedings before the aforementioned chamber, no objection was raised as to its jurisdiction; however, the chamber addressed itself to the question whether “Article 32 of the Convention confers exclusive jurisdiction on the court which it designates in a contracting state to hear applications for orders for the enforcement of judgments given in other contracting states” and whether it should therefore raise the matter of its lack of jurisdiction of its own motion. Referring to Article 177 of the EEC Treaty, the tribunal de Grande Instance, Versailles, submitted that question of interpretation to the court of justice.

4. Unlike Article 177 of the EEC Treaty, which is not applicable in this case, Article 2(1) and (2) of the Protocol concerning the interpretation of the 1968 Brussels Convention by the Court of Justice signed on 3 June 1971, reserves the power to request the Court of Justice to give preliminary rulings on questions of interpretation to the courts designated by name therein and to the “courts of the Contracting States when they are sitting in an appellate capacity”.

5. The tribunal de Grande Instance, Versailles, is not one of the courts set out in Article 2, and it is not sitting in an appellate capacity in the main proceedings. Thus, the Court of Justice manifestly has no jurisdiction to take cognizance of the present request for a preliminary ruling; consequently, it must avail itself of the possibility, provided for in Article 92(1) of the rules of procedure, read together with article 103(2), of declaring the request inadmissible by order.

Case Law 1968 Brussels Convention

Article 33 of the 1968 Brussels Convention

ECJ 10 July 1986 'Carron v Federal Republic of Germany' (Case 198/85, ECR 1986 p. 02437)

The second paragraph of Article 33 of the 1968 Brussels Convention must be interpreted as meaning that the obligation to give an address for service of process laid down in that provision must be fulfilled in conformity with the rules laid down by the law of the State in which enforcement is sought, and if that law is silent as to the time at which that formality must be observed, no later than the date on which the decision authorizing enforcement is served. The consequences of a failure to comply with the rules on the furnishing of an address for service are, by virtue of Article 33 of the Convention, governed by the law of the State in which enforcement is sought, provided that the aims of the convention are respected.

Case Law 1968 Brussels Convention

Article 34 of the 1968 Brussels Convention

ECJ 4 October 1991 ‘Van Dalfsen c.s. v Van Loon and Berendsen’ (Case C-183/90, ECR 1991 p. I-04743)

The first paragraph of Article 38 of the Convention is to be strictly interpreted so as not to prejudice the effectiveness either of Article 31, which lays down the principle that a judgment given in a Contracting State and enforceable in that State may be enforced in another Contracting State even if it has not yet become res judicata, or of the third paragraph of Article 34, which prohibits the courts of the State in which enforcement is sought from reviewing the substance of the judgment given in the first State.

Hence the first paragraph of Article 38 of the Convention is to be interpreted as meaning that a court with which an appeal is lodged against an order for the enforcement of a judgment given in another Contracting State may take into consideration, in a decision concerning an application for the proceedings to be stayed under that paragraph, only such submissions as the appellant was unable to put before the court of the State in which the judgment was given.

Case Law 1968 Brussels Convention

Article 36 of the 1968 Brussels Convention

ECJ 16 February 2006 ‘Verdoliva v Van der Hoeven’ (Case C-3/05, ECR 2006 p. I-01579)

Article 36 of the 1968 Brussels Convention is to be interpreted as requiring due service of the decision authorising enforcement in accordance with the procedural rules of the Contracting State in which enforcement is sought, and therefore, in cases of failure of, or defective, service of the decision authorising enforcement, the mere fact that the party against whom enforcement is sought has notice of that decision is not sufficient to cause time to run for the purposes of the time-limit fixed in that article.

First, the requirement that the decision authorising enforcement be served has a dual function: on the one hand, it serves to protect the rights of the party against whom enforcement is sought and, on the other, it allows, in terms of evidence, the strict and mandatory time-limit for appealing provided for that provision to be calculated precisely. That double function, combined with the aim of simplification of the formalities to which enforcement of judicial decisions delivered in other Contracting States is subject, explains why the Convention makes transmission of the decision authorising enforcement to the party against whom enforcement is sought subject to procedural requirements that are more stringent than those applicable to transmission of that same decision to the applicant. Secondly, if the sole issue were whether the document authorising enforcement came to the attention of the party against whom enforcement was sought, that could render the requirement of due service meaningless and, moreover, would make the exact calculation of the time-limit provided for in that provision more difficult thus thwarting the uniform application of the provisions of the Convention (see paras 34-38, operative part).

ECJ 4 February 1988 'Hoffmann v Krieg' (Case 145/86, ECR 1988 p. 00645)

A foreign judgment which has been recognized by virtue of Article 26 of the 1968 Brussels Convention must in principle have the same effects in the state in which enforcement is sought as it does in the state in which judgment was given. Article 36 of the Convention must be interpreted as meaning that a party who has not appealed against the enforcement order referred to in that provision is thereafter precluded, at the stage of the execution of the judgment, from relying on a valid ground which he could have pleaded in such an appeal, and that that rule must be applied of their own motion by the courts of the State in which enforcement is sought. However, that rule does not apply when it has the result of obliging the national court to make the effects of a national judgment which lies outside the scope of the convention conditional on its recognition in the state in which the foreign judgment whose enforcement is at issue was given.

ECJ 3 October 1985 'Capelloni v Pelkmans' (Case 119/84, ECR 1985 p. 03147)

By virtue of Article 39 of the 1968 Brussels Convention a party who has applied for and obtained authorization for enforcement may proceed directly with protective measure against the property of the party against whom enforcement is sought and is under no obligation to obtain specific authorization. Such measures may be taken up to the expiry of the period for lodging an appeal prescribed in Article 36 and, if such an appeal is lodged, until a decision is given thereon .

A party who has proceeded with the protective measures referred to in Article 39 of the 1968 Brussels Convention is under no obligation to obtain in respect of such measures any confirmatory judgment required by the national law of the court in question. However, Article 39 does not prevent the party against whom those measures have been applied from taking legal proceedings in order to secure, by recourse to the appropriate procedures laid down in the national law of the court dealing with the matter, adequate protection of the rights which he alleges to have been infringed by the measures in question.

ECJ 2 July 1985 ‘Genossenschaftsbank v Brasserie du Pêcheur’ (Case 148/84, ECR 1985 p. 01981)

The 1968 Brussels Convention established an enforcement procedure which constitutes an autonomous and complete system, including the matter of appeals. It follows that Article 36 of the Convention excludes procedures whereby interested third parties may challenge an enforcement order under domestic law.

ECJ November 1984 ‘Brennero v Wendel’ (Case 258/83, ECR 1984 p. 03971)

The second paragraph of Article 37 of the 1968 Brussels Convention must be interpreted as meaning that an appeal in cassation and, in the Federal Republic of Germany, a rechtsbeschwerde, may be lodged only against the judgment given on the appeal lodged pursuant to Article 36 of the Convention.