Case Law 1968 Brussels Convention
Article 37 of the 1968 Brussels Convention
ECJ 22 March 2002 ‘Reichling v Wampach’ (Case
C-69/02, ECR 2002 p. I-03393)
Article 2(1) and (3) of the Protocol set out expressly and exhaustively - the first directly, the second by reference to Article 37 of the 1968 Brussels Convention - the courts which may make references to the Court. Article 2(2) adds that the courts of the Contracting States sitting in an appellate capacity may also do so.
Luxembourg Tribunaux de paix are not mentioned either in Article 2(1) of the Protocol or in Article 37 of the Convention. Furthermore, it is clear from Article 2 of the new Luxembourg Civil Procedure Code in conjunction with Article 9 of the Luxembourg Law of 11 November 1970 on assignment and attachment of salaries, pensions and investment income that, when the Tribunal de paix rules on the validity of an attachment order for a sum exceeding the limit of its jurisdiction of last resort, its decision is subject to appeal. In the present case, it follows both from the subject-matter of the main proceedings, as set out by the national court, and from further details in that regard given by the judgment referring questions to the Court, that the Tribunal de paix is sitting as a court of first instance.
It follows that, in the main proceedings, the Tribunal de paix de Luxembourg may not request the Court to give a preliminary ruling on the interpretation of the Convention.
In those circumstances, Article 92(1) of the Rules of Procedure must be applied and it must be held that the Court clearly has no jurisdiction to rule on the questions put by the Tribunal de paix de Luxembourg.
ECJ 11 August 1995 ‘Société d'Informatique v Ampersand’ (Case C-432/93, ECR 1995 p. I-02269)
Article 37(2) and the first paragraph of Article 38 of the 1968 Brussels Convention are to be interpreted as meaning that a decision by which a court of a Contracting State, seised of an appeal against authorization to enforce an enforceable judgment of a court in another Contracting State, refuses a stay or lifts a stay previously ordered does not constitute a "judgment given on the appeal" within the meaning of the said Article 37(2) and therefore cannot be contested by an appeal in cassation or similar form of appeal limited to the examination of points of law only. Moreover, the court seised of such an appeal on a point of law under Article 37(2) of the Convention does not have jurisdiction to impose or reimpose such a stay.
ECJ
21 April 1993 ‘Sonntag v Waidmann c.s.’ (Case
C-172/91, ECR 1993 p. I-01963) 
The second paragraph of Article 37 of the 1968 Brussels 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.
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
4 October 1991 ‘Van Dalfsen c.s. v Van Loon and Berendsen’
(Case C-183/90, ECR 1991 p. I-04743)
The second paragraph of Article 37 of the 1968 Brussels Convention is to be interpreted as meaning that a decision taken under Article 38 of the Convention by which the court with which an appeal has been lodged against an order for the enforcement of a judgment given in another Contracting State has refused to stay the proceedings and has ordered the party to whom the enforcement order was granted to provide security does not constitute a "judgment given on the appeal" within the meaning of the second paragraph of Article 37 of the Convention and may not, therefore, be contested by an appeal in cassation or similar form of appeal. The position is the same where the decision taken under Article 38 of the Convention and the "judgment given on the appeal" within the meaning of the second paragraph of Article 37 of the Convention are given in a single judgment.
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.
ECJ 9 November 1983 ‘Habourdin v Italocremona’ (Case 80/83, ECR 1983 p. 03639)
The Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels Convention provides that only certain courts, referred to in Article 2 thereof, may request the Court of Justice to give preliminary rulings on the interpretation of the 1968 Brussels Convention. Indents 1 and 3 of the before mentioned Article 2 - the first directly and the second by reference to Article 37 of the 1968 Brussels Convention - list, expressly and exhaustively, the courts which may request the Court of Justice to give a preliminary ruling. Article 2(2) states in addition that “the courts of the Contracting States when they are sitting in an appellate capacity” may also request preliminary rulings.
Since the Italian tribunali (district courts) are not referred to either in Article 2 (1) of the Protocol or in Article 37 of the 1968 Brussels Convention, they may request the court of justice to give a preliminary ruling on a question of interpretation only when they are “sitting in an appellate capacity”.
Case Law 1968 Brussels Convention
Article 38 of the 1968 Brussels Convention
ECJ
11 August 1995 ‘Société d'Informatique v Ampersand’
(Case C-432/93, ECR 1995 p. I-02269)
Article 37(2) and the first paragraph of Article 38 of the 1968 Brussels Convention are to be interpreted as meaning that a decision by which a court of a Contracting State, seised of an appeal against authorization to enforce an enforceable judgment of a court in another Contracting State, refuses a stay or lifts a stay previously ordered does not constitute a "judgment given on the appeal" within the meaning of the said Article 37(2) and therefore cannot be contested by an appeal in cassation or similar form of appeal limited to the examination of points of law only. Moreover, the court seised of such an appeal on a point of law under Article 37(2) of the Convention does not have jurisdiction to impose or reimpose such a stay.
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 November 1984 ‘Brennero v Wendel’ (Case 258/83, ECR 1984 p. 03971)
The second paragraph of Article 38 of the 1968 Brussels Convention must be interpreted as meaning that a court with which an appeal has been lodged against a decision authorizing enforcement, given pursuant to the Convention, may make enforcement conditional on the provision of security only when it gives judgment on the appeal.
ECJ 22 November 1977 ‘Diamond Supplies v Riva’ (Case 43-77, ECR 1977 p. 02175)
1. Because of the differences in the legal concepts of the Member States which are parties to the 1968 Brussels Convention with regard to the distinction between “ordinary” and “extraordinary” appeals, the meaning of the concept of “ordinary appeal” cannot be determined by reference to a national legal system, whether that of the State in which the judgment was given or that of the State in which recognition or enforcement is sought. This concept may therefore be defined solely within the framework of the Convention itself.
2. In view of the structure of Articles 30 and 38 and of their function in the system of the 1968 Brussels 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 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.
Case Law 1968 Brussels Convention
Article 39 of the 1968 Brussels Convention
ECJ
3 October 1985 'Capelloni v Pelkmans' (Case 119/84,
ECR 1985 p. 03147)
1. Article 39 of the 1968 Brussels Convention merely lays down the principle that the party who has applied for enforcement may, during the period indicated in that Article, proceed to apply measures to protect the property of the party against whom enforcement is sought. By contrast, the Convention leaves the matter of resolving any question not covered by specific provisions of the Treaty to the procedural law of the court hearing the proceedings. It must nevertheless be made clear that the application of the requirements of the national procedural law of the court hearing the proceedings must not in any circumstances lead to frustration of the principles laid down in that regard, whether expressly or by implication, by the Convention itself and by Article 39 thereof in particular. Accordingly, the question whether any given provision of the national procedural law of the court hearing the proceedings is applicable to protective measures taken pursuant to Article 39 depends upon the scope of each provision of national law and upon the extent to which it is compatible with the principles laid down by Article 39 .
2. 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.
Case Law 1968 Brussels Convention
Article 40 of the 1968 Brussels Convention
ECJ
11 May 2000 ‘Renault v Maxicar’ (Case
C-38/98, ECR 2000 Page 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 Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 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 12 July 1984 'Firma P v Firma K.' (Case 178/83, ECR 1984 Page 03033)
The court hearing an appeal by the party seeking enforcement is required to hear the party against whom enforcement is sought, pursuant to the first sentence of the second paragraph of Article 40 of the 1968 Brussels Convention, even though (a) the application for an enforcement order was dismissed simply because documents were not produced at the appropriate time and (b) the enforcement order is applied for in a State which is not the State of residence of the party against whom enforcement is sought.
Case Law 1968 Brussels Convention
Article 42 of the 1968 Brussels Convention
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 1968 Brussels Convention. 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 1968 Brussels Convention. A decision which does both these things may, in accordance with Article 42 of the 1968 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.