| SCHLOSSER REPORT 1979,
No C 59 / 72
153. Leaving aside insurance matters the 1968 Convention pays heed to consumer protection considerations only in one small section, that dealing with instalment sales and loans. This was consistent with the law as it then stood in the original Member States of the Community since it was in fact at first only in the field of instalment sales and loans that awareness of the need to protect the consumer against unfairly worded contracts became widespread. Since that time legislation in the Member States of the Community has become concerned with much broader-based consumer protection. In particular there has been a general move in consumer protection legislation to ensure appropriate jurisdictions for the consumer. Intolerable tensions would be bound to develop between national legislation and the 1968 Convention in the long run if the Convention did not afford the consumer much the same protection in the case of transfrontier contracts as he received under national legislation. The Working Party therefore decided to propose that the previous Section 4 of Title II be extended into a section on jurisdiction over consumer contracts, establishing at the same time for future purposes that only final consumers acting in a private capacity should be given special protection and not those contracting in the course of their business to pay by instalments for goods and services used. The Working Party was influenced on this last point by the proceedings in the Court of Justice of the European Communities in response to a reference from the French Cour de cassation concerning the interpretation of instalment sales and loans proceedings which centred on the question of whether the existing Section 4 of Title II covered instalment sales contracts concluded by businessmen (Case 150/77: Societe Bertrand v. Paul Ott KG). The basic principle underlying the provisions of the new section is to draw upon ideas emerging from European Community law as it has evolved and is currently evolving. Consequently, most of the existing provisions on instalment sales and loans have been incorporated in the new section which also draws on Article 50f the preliminary draft Convention on the law applicable to contractual and non-contractual obligations. On points of drafting detail, however, improvements 152. (a) 5. Agreements on jurisdiction between parties to a contract from the same State ....
154. Using the device of an introductory provision defining the scope of the Section, the proposal follows the practice previously adopted at the beginning of Sections 3 and 4 of Title II. 155. The only new point of principle is a provision governing the persons covered by the section including in particular the legal definition of the section central term, the 'consumer'. The substances of the definition is taken from Article 5 of the preliminary draft Convention on the law applicable to contractual and non-contractual obligations the most recent version of which was used by the Working Party. The amendments made were only drafting improvements. 156. As regards the subject matter covered by the new section, a clear distinction is drawn between instalment sales, including the financing of such sales, and other consumer contracts. The consequent effect on the precedence of the provisions of Sections 3 and is as follows: Section 3 is a more specific provision than Section 4 and hence takes precedence over it. A contract of insurance is not a contract for the supply of services within the meaning of the 1968 Convention. Within Section 4, the provisions on instalment sales are more specific than the general reference to consumer sales in the first paragraph of Article 13. 157. (a) As in the past, instalment sales are subject to the special provisions without any further preconditions. The sole change lies in the stipulation that the special provisions apply only where the purchaser is a private consumer. The rules governing instalment sales also apply automatically to the legal institution of hire purchase, which has developed into the commonest legal form for transacting instalment sales in the United Kingdom and Ireland. For reasons which are not material for jurisdiction purposes, instalment sales in those countries usually take the form in law of a contract of hire with an option to purchase for the hirer. In form the instalments represent the hire fee, whereas in substance they form the purchase price. At the end of the prescribed 'hire' period, once all the prescribed instalments of the 'hire fee' have been paid, the 'hirer' is entitled to purchase the article for a nominal price. As the term 'instalment sale' under the continental legal systems by no means implies that ownership of the article must necessarily pass to the purchaser at the same time as physical possession, hire purchase is in practice tantamount to an instalment sale. Contracts to finance instalment sales to private consumers are also subject to the special provisions without any further preconditions. Contrary to the legal position obtaining hitherto the Working Party has made actions arising out of a loan contract to finance the purchase of movable property subject to the special provision even if the loan itself is not repayable by instalments or if the article is purchased with a single payment (normally with the funds lent). Credit contracts are not, moreover, contracts for the supply of services, so that, apart from point (2) of the first paragraph of Article 13, the whole of Section 4 does not apply to such contracts. Contracts of sale not falling under point (1) of the first paragraph of Article 13 do not, for instance, come under point (2) of that paragraph although Section 4 may be applicable to them subject to the further conditions contained in point (3) (see paragraph 158). 158. (b) On the other hand, consumer contracts other than those referred to in paragraph 157 are subject to the special provisions only if there is a sufficiently strong connection with the place where the consumer is domiciled. In this, the new provisions once again follow the preliminary draft Convention on the law applicable to contractual and non-contractual obligations. Both the conditions referred to in point (3) of the first paragraph of Article 13 - an offer or advertising in the State of the consumer domicile, and steps necessary for the conclusion of the contract taken by the consumer in that State - must be satisfied. The introductory phrase should, moreover, ensure that Articles 4 and 5 (5) ...
For further details of what is meant by 'a specific invitation' or 'advertising' in the State of the consumer s domicile and by 'the steps necessary for the conclusion of the contract, see the report currently being drawn up by Professor Giuliano on the Convention on the law applicable to contractual and non-contractual obligations.
159. The exclusion from the scope of Section 4 of contracts between consumers and firms domiciled outside the EEC would not be reasonable where such firms have a branch, agency or other establishment within the EEC. Under the national laws upon which jurisdiction is to be founded in such cases pursuant to Article 4, it would often be impossible for the consumer to sue in the courts which would be guaranteed to have jurisdiction for his purposes in the case of contracts with parties domiciled within the EEC. Insurers with branches agencies or other establishments in the EEC are treated as regards jurisdiction in like manner to those domiciled within the Community (Article 8) and for the same reasons the other parties to contracts with consumers must also be deemed to be domiciled within the EEC if they have a. branch, agency of other establishment in the Community., It is however, only logical that it should not be possible to invoke exorbitant jurisdictions against such parties simply because their head office lies outside the EEC. 160. The last paragraph of Article 13 is again taken from Article 5 of the preliminary draft Convention on the law applicable to contractual and non-contractual obligations. The reason for leaving contracts of transport out of the scope of the special consumer protection provisions in the 1968 Convention is that such contracts are subject under international agreements to special sets of rules with very considerable ramifications and the inclusion of those contracts in the 1968 Convention purely for jurisdictional purposes would merely complicate the legal position. Moreover, the total exclusion of contracts of transport from the scope of Section 4 means that Sections 1 and 2 and hence in particular Article 5 (1) remain applicable.
161. There are only a few points requiring a brief explanation of the substance of the new provisions.
In substance, the new Article 14 closely follows the existing Article 14, while extending it to actions arising from all consumer contracts. The rearrangement of the text is merely a rewording due to the availability of a convenient description for one party to the contract, the consumer which was better placed at the beginning of the text so as to make it more easily comprehensible. The Working Parties decision means in substance that, as in the case with the existing Article 14 the consumer may sue in the courts of his new State of domicile if he moves to another Community State after concluding the contract out of which an action subsequently arises. This only becomes practical, however, in the case of the instalment sales and credit contracts referred to in points (1) and (2) of the first paragraph of Article 13. For actions arising out of other consumer contracts the new Section 4 will in virtually all cases cease to be applicable if the consumer transfers his domicile to another State after conclusion of the contract. This is because the steps necessary for the conclusion of the contract will almost always not have been taken in the new State of domicile. The cross-frontier advertising requirement also ensures that the special provisions will in practice not applicable to contracts between two persons neither of whom is acting in a professional or trading capacity. 161a. The new version of Article 15, too is in substance based on the existing version relating to instalment sales and loans. The only addition is intended to make it clear that it is at the time of conclusion of the contract, and not when proceedings are subsequently instituted, that the parties must be domiciled in the same State. It ...
Although Article 13 is not expressed to be subject to Article 17 the Working Party was unanimously of the opinion that agreements on jurisdiction must, in so far as they are permitted at all, comply with the formal requirements of Article 17. Since the form of such agreements is not governed by Section 4, it must be governed by Article 17.
162. The only amendment proposed by the Working Party to the cases of exclusive jurisdiction provided for in Article 16 is a technical amendment in Article V d of the Protocol annexed to the 1968 Convention, to clarify Article 16 (4). The Working Party did, however, spend some time discussing paragraphs (1) and (f) of that Article. Details of the information supplied to the new Member States regarding exclusive jurisdiction in actions relating to the validity of the constitution of companies or to their dissolution have already been given elsewhere (see paragraph 56 et seq.). It is only necessary to add that a company may have more than one seat. Where under a legal system it is possible for a company to have two seats, and it is that system which, pursuant to Article 53 of the 1968 Convention, is to determine the seat of the company, the existence of two seats has to be accepted. It is then open to the plaintiff to choose which of the two seats he will use to base the jurisdiction of the court for his action. Finally, it should be pointed out that Article 16 (2) also applies to partnerships established under United Kingdom and Irish law (see paragraph 55). Thus essentially the only exclusive jurisdiction left to be dealt with more fully here is that in respect of actions relating to rights in rem, or tenancies of, immovable property. There were five problems with regard to which the new Member States had requested explanations. 163. There was no difficulty in clarifying that actions for damages based on infringement of rights rem or in damage to property in which rights rem exist do not fall within the scope of Article 16 (1). In that context the existence and content of such rights in rem usually rights of ownership, are only of marginal significance. 164. The Working Party was unable to agree whether actions concerned only with rent, i.e. dealing simply with the recovery of a debt, are excluded from the scope of Article 16 (1) as, according to the Jenard report, was the opinion of the Committee which drafted the 1968 Convention [38]. However the underlying principle of the provision quite clearly does not require its application to short-term agreements for use and occupation such as, for example holiday accommodation. 165. Two of the three remaining problems which the Working Party examined relate to the differences between the law of immovable property on the continent and the corresponding law in the United Kingdom and Ireland; they require therefore somewhat more detailed comments. There is, first, the question what are rights in rem (1) within the meaning of Article 16 (1), and secondly, the problem of disputes arising in connection with the transfer of immovable property (2). Certain other problems emerged as a result of developments which have taken place in the meantime in international patent law (3).
166. (a) The concept of a right in rem as distinct from a right in personam is common to the legal systems of the original Member States of the EEC, even though the distinction does not appear everywhere with the same clarity. A right in personam can only be claimed against a particular person; thus only the purchaser is obliged to pay the purchase price and only the lessor of an article is obliged to permit its use. A right in rem on the other hand, is available against the whole world. The most important legal consequence flowing from the nature of a right in rem is that its owner is entitled to ...
In the legal systems of all the original Member States of the EEC without exception, there are only a restricted number of rights in rem even though they do not rigidly apply the principle. Some rights in rem are defined only in outline with freedom for the parties to agree the details. The typical rights in rem are listed under easily identifiable heads of the civil law, which in all six countries is codified [39]. In addition, a few rights in rem are included in some special laws, the most important of which are those on the co-ownership of real property. Apart from ownership as the most comprehensive right rem a distinction can be made between certain rights of enjoyment and certain priority rights to secure liabilities. All the legal systems know the concept of usufruct, which confers extensive rights to enjoyment of a property. More restricted rights of enjoyment can also exist in these legal systems in various ways. 167. (b) At first glance there appears to be in United Kingdom and Irish law too a small, strictly circumscribed group of statutory rights corresponding to the Continental rights in rem. However, the position is more complicated because these legal systems distinguish between law and equity. In this connection it has always to be borne in mind that equity also constitutes law and not something merely akin to fairness lying outside the concept of law. As a consequence of these special concepts of law and equity in the United Kingdom and in Ireland, equitable interests can exist in immovable property in addition to the legal rights. In the United Kingdom the system of legal rights has its origin in the idea that all land belongs to the Crown and that the citizen can only have limited rights in immovable property. This is the reason why the term 'ownership' does not appear in the law of immovable property. However, the estate in fee simple absolute in possession is equivalent to full ownership under the Continental legal systems. In addition the Law of property Act 1925 provides for full ownership for a limited period of time ('term of years absolute The same Act limits restricted rights in immovable property ('interests or charges in or over land') to five. All the others are equitable interests, whose number and content are not limited by the Act. Equitable interests are not however, merely the equivalent of personal rights on the Continent. Some can be registered and then, like legal rights, have universal effect, even against purchasers in good faith. Even if not registered they operate in principle against all the world; only purchasers in good faith who had no knowledge of them are protected in such a case [40]. If the owner of an estate in fee simple absolute in possession grants another person a right of way over his property for the period of that person s life, this cannot amount to a legal right. It can only be an equitable interest, though capable of registration [41]. Equitable interests can thus fulfil the same functions as rights in rem under the Continental legal systems, in which case they must be treated as such under Article 16 (1). There is no limit to the number of such interests. The granting of equitable interests is on the contrary the method used for achieving any number of subdivisions of proprietary rights [42]. 168. (c) If an action relating to immovable property is brought in a particular State and the question whether the action is concerned with a right rem within the meaning of Article 16 (1) arises the answer can hardly be derived from any law other than that of the situs.
169. The legal systems of the original and the new Member States of the Community also differ as regards the manner in which ownership of immovable property is transferred on sale. Admittedly the legal position even within the original Member States differs in this respect. 170. (a) German law distinguishes most clearly between the transfer itself and the contract of sale (or other contract designed to bring about transfer). The legal position in the case of immovable property is no different from that obtaining in the case of movable property. The transfer is a special type of legal transaction which in the case of immovable property is called Auflassung (conveyance) and which even between the parties becomes effective only on entry in the land register. Where a purchaser of German immovable property brings proceedings on the basis of, a contract for sale of immovable property which is governed by German law, the ...
Admittedly it is possible with the vendor consent to protect the contractual claim for a transfer of ownership by means of a caution in the land register. In that case the claim has, as against third parties, effects which normally only attach to a right in rem. The consequence for German domestic law is that nowadays rights secured by such a caution may be claimed against third parties in the jurisdiction competent to deal with the property concerned [43]. However, any proceedings for a transfer of ownership against the vendor himself would remain an action based on a personal obligation. 171. (b) Under French, Belgian and Luxembourg law which is largely followed by Italian law, the ownership, at any rate as between the parties passes to the purchaser as soon as the contract of sale is concluded, just as it does in the case of movable property, unless the parties have agreed a later date (see e.g. Article 711 and 1583 of the French Civil Code and Article 1376 of the Italian Civil Code). The purchaser need only enter the transfer of ownership in the land register transcription ) to acquire a legal title which is also effective against third parties. For the purchaser to bring proceedings for performance of the contract is therefore normally equivalent to a claim that the property be handed over him. Admittedly this claim is based not only on the obligation which the vendor undertook by the contract of sale, but also on ownership which at that point has already passed to the purchaser. This means that the claim for handing over the property has as its basis both personal obligation and a right in rem. The system of remedies which is available in the event of one party to a contract not complying with its obligations is fully in accordance with this. Accordingly, French domestic law has treated such actions as a 'matiere mixte' and given the plaintiff the right to choose between the jurisdiction applicable to the right in rem and the jurisdiction applicable to the personal obligation arising from the contract, i.e. the law of the defendant's domicile or of the place of performance of the contract [44]. The 1968 Convention does not deal with this problem. It would seem that the personal aspect of such claims predominates and Article 16 (1) is inapplicable. 172. (c) In the United Kingdom ownership passes on the conclusion of a contract of sale only in the case of movable property. In the case of a sale of immovable property the transfer of ownership follows the conclusion of the contract of sale and is effected by means of a separate document, the conveyance. If necessary, the purchaser has bring an action for all necessary acts to be performed by the vendor. However, except in Scotland, in contrast with German law, the purchaser rights prior to the transfer of ownership are not limited to a personal claim against the vendor. In fact the purchaser has an equitable interest (see paragraph 167) in the property which provided the contract protected by a notice on the Land Register, is also effective against third parties. Admittedly the new paragraph (6) of Article. 5 does not apply (see paragraph 114 et seq.), because a contract of sale does not create a trust within the meaning of Article 5 (6), even if it is in writing. It is only in one respect that a purchaser s equitable interest does not place him in as strong a position as the French owner of immovable property prior to 'transcription' (see paragraph 171): the vendor cooperation, is still required to make the new owner s legal title fully effective. This legal position would justify application of the exclusive jurisdiction referred to in Article 16 (1) even less than the corresponding position under French law. The common law has developed the concept of equitable interests so as to confer on parties to an agreement which originally gave them nothing more than merely personal rights a certain protection as against third parties not acting in good faith. As against the other party to the contract the claim remains purely a personal one, as does a claim, under German law, to transfer of ownership (see paragraph 170) secured by a caution in the Land Register. In Scotland contracts in favour of a third party are enforceable by that party (jus quaesitum tertii). Actions based on contracts for the transfer of ownership or other rights in rem affecting immovable property do not therefore have as their object rights rem. Accordingly they may also be brought before courts outside the United Kingdom. Admittedly, care will have to exercised in that case to ensure that the plaintiff clearly specifies the acts to be done by the defendant so that the transfer of ownership (governed by United Kingdom law) does indeed become effective.
173. Since the 1968 Convention entered into force, two Conventions on patents have been signed which are of the greatest international importance. The Munich Convention on the grant of European patents was signed on 5 October 1973 and the Luxembourg Convention for the European patent for the common market was signed on December 1975. The purpose of the Munich Convention is to introduce a common patent application procedure for the Contracting States, though the patent subsequently granted is national in scale. It is valid for one or more States, its substance in each case being basically that of a corresponding patent granted nationally. The aim of the Luxembourg Convention is to institute in addition a patent granted ab initio for all States of the Community in a standard manner and with the same substance based on Community law; such a patent necessarily remains valid or expires uniformly throughout the EEC. Both instruments contain specific provisions on jurisdiction which take precedence over the 1968 Convention. However, the special jurisdiction provisions relate only to specific matters, such as applications for the revocation of patents pursuant to the Luxembourg Convention. Article 16 (4) of the 1968 Convention remains relevant for actions for which no specific provision is made. In the case of European patents under the Munich Convention it is conceivable that this provision might be construed as meaning that actions must be brought in the State in which the patent was applied for and not in the State for which it is valid and in which it is challenged. The new Article Vd of the Protocol annexed to the 1968 Convention is designed to prevent this interpretation and ensure that only the courts of the State in which the patent is valid have jurisdiction, unless the Munich Convention itself lays down special provisions. Clearly, such a provision cannot cover a Community patent. under the Luxembourg Convention, since the governing principle is that the patent is granted, not for a given State, but for all the Member States of the EEC. Hence the exception at the end of the new provision. However, even in the area covered by the Luxembourg Convention patents valid for one or more, but not all, States of the Community are possible. Article 86 of that Convention allows this for a transitional period to which no term has yet been set. Where the applicant for a patent takes up the option available to him under this provision and applies for a patent for one more, but not all, States of the EEC, the patent is not a Community patent even though it comes under some of the provisions of the Luxembourg Convention but merely a patent granted for one or more States. Accordingly, the courts of that State have exclusive jurisdiction under Article Vd of the Protocol annexed to the 1968 Convention. The same is true for any case in which a national patent is granted in response to an international application e.g. under the Patent cooperation Treaty opened for signature at Washington on 19 June 1970. It only remains to be made clear that Article 16 (4) of the 1968 Convention and the new Article V d of the Protocol annexed to the Convention also cover actions which national legislation allows to be brought at the patent application stage, so as to reduce the risk of a patent being granted, and the correctness of the grant being subsequently challenged.
174. Article 17, applying as it does only if the transaction in question is international in character (see paragraph 21), which the mere fact of choosing a court in a particular State is by no means sufficient to establish, presented the Working Party with four problems. First, account had to be taken of the practice of courts in the United Kingdom (excluding Scotland) and Ireland of deducing from the choice of law to govern the main issue an agreement as to the courts having jurisdiction. Secondly, there was the problem previously ignored by the 1968 Convention, of agreements conferring jurisdiction upon a court outside the Community or agreements conferring jurisdiction upon courts within the Community by two parties both domiciled outside the Community. Thirdly, special rules had to made for provisions in trusts. And finally, the Working Party had to consider whether it was reasonable to let Article 17 stand in view of the interpretation which had been placed upon it by the Court of Justice of the European Communities. It should be repeated (see paragraph 22) that the existence of an agreement conferring jurisdiction on a court other than the court seised of the proceedings is one of the points to be taken into account by the court of its own motion.
175. Nowhere in the 1968 Convention is there recognition of a connection between the law applicable to particular issue and the international jurisdiction of the courts over that issue. However, persons who, relying on the practice of United Kingdom or Irish courts, have agreed on choice-of-Law clauses before the entry into force of the Accession Convention, are entitled to expect protection. This explains the transitional provision contained in Article 35 of the proposed Accession Convention. The term 'entry into force' within the meaning of this provision refers to the date on which the Accession Convention comes into effect in the State in question. For the various systems of law applying in the United Kingdom, see paragraph 11.
176. (a) In cases where parties agree to bring their disputes before the courts of a State which is not a party to the 1968 Convention there is obviously nothing in the 1968 Convention to prevent such courts from declaring themselves competent, if their law recognizes the validity of such an agreement. The only question is whether and, if so, in what form such agreements are capable of depriving Community courts of jurisdiction which is stated by the 1968 Convention to be exclusive or concurrent. There is nothing in the 1968 Convention to support the conclusion that such agreements must be inadmissible in principle [46]. However, the 1968 Convention does not contain any rules as to their validity either. If a court within the Community is applied to despite such an agreement, its decision on the validity of the agreement depriving it of jurisdiction must be taken in accordance with its own lex fori. In so far as the local rules of conflict of laws support the authority of provisions of foreign law, the latter will apply. If, when these tests are applied, the agreement is found to be invalid, then the jurisdictional provisions of the 1968 Convention become applicable. 177. (b) On the other hand, proceedings can be brought before a court within the Community by parties who, although both domiciled outside the Community, have agreed that that court should have jurisdiction. There is no reason for the Convention to include rules on the conditions under which the court stipulated by such parties must accept jurisdiction. It is however important for the Community to ensure, by means of more detailed conditions, that the effect of such an agreement on jurisdiction is recognized throughout the EEC. The new third sentence of the first paragraph of Article 17 is designed to cater for this. It covers the situation where despite the fact that both parties are domiciled outside the Community, a court in a Community State ('X') would, were it not for a jurisdiction agreement, have jurisdiction, e.g. on the ground that the place of performance lies within that State. If in such a case the parties agree that the courts of another Community State are to have exclusive jurisdiction, that agreement must be observed by the courts of State X, provided the agreement meets the formal requirements of Article 17. Strictly speaking, it is true, this is not necessary adjustment. Such situations were possible before, in relations between the original Member States of the Community. However owing to the frequency with which jurisdiction is conferred upon United Kingdom courts in international trade, the problem takes on considerably greater importance with the United Kingdom accession to the Convention than hitherto.
178. A trust (see paragraph 111) need not be established by contract. A unilateral, legal instrument is sufficient. As the previous version of Article 17 dealt only with 'agreements' on jurisdiction, it needed to be expanded.
179. Some of the first judgments given by the Court of Justice of the European Communities since it was empowered to interpret the 1968 Convention were concerned with the form of jurisdiction clauses incorporated in standardized general conditions of trade [47]. The fact that the purchaser does not raise any objections against a confirmation issued unilaterally by the other party does not amount to acceptance on his part of the clause conferring jurisdiction unless the oral agreement comes within the framework of a continuing trading relationship between the parties which is based on the general conditions of one of them, and those conditions contain a clause conferring jurisdiction (Case No 25176). Where a clause conferring jurisdiction is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of a writing under the first paragraph of Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters is fulfilled only if the contract signed by both parties contains an express reference to those general conditions (Case No 24/76 (1976) ECR 1831). In the case of a contract concluded by reference to earlier offers, which were themselves made with reference to the general conditions of one of the parties including a clause conferring jurisdiction, the requirement of a writing under the first paragraph of Article 17 of the Convention is satisfied only if the reference is express and can therefore be checked by a party exercising reasonable care (Case No 24/76).]
Adjustments and further clarification were not necessary.
180. As regards lis pendens there are two structural differences between the laws of the United Kingdom and Ireland, on the one hand, and the Continental legal systems on the other. However neither of them necessitated a technical amendment of the 1968 Convention. 181. The rules governing lis pendens in England and Wales, and to some extent in Scotland, are more flexible than those on the Continent. Basically, it is a question for the court's discretion whether a stay should be granted. The doctrine of lis pendens is therefore less fully developed there, than in the Continental States. The practice is in a sense an application of the doctrine of forum conveniens (see paragraph 77 et seq.). Generally a court will in fact grant an application for a stay of proceedings, where the matter in dispute is already pending before another court. Where proceedings are pending abroad, the courts in England and Wales exercise great caution, and if they grant a stay of proceedings at all, they will do so only if the plaintiff in England or Wales is also the plaintiff in the proceedings abroad. Scottish courts take into account to a considerable extent any conflicting proceedings which a Scottish defendant may have instituted abroad, or which are pending against him abroad. After the United Kingdom has acceded to the 1968 Convention, it will no longer be possible for this practice to be maintained in relation to the other Member States of the Community. United Kingdom courts will have to acknowledge the existence of proceedings instituted in the other Member States, and even to take notice of them of their own motion (see paragraph 22).
182. The fact that the moment at which proceedings become pending is determined differently in the United Kingdom and Ireland from the way it is determined on the Continent is due peculiarities of procedural law in those States. In the original Member States of the Community a claim becomes pending when the document instituting the proceedings is served [49]. Filing with the court is sometimes sufficient. In the United Kingdom, except Scotland, and in Ireland proceedings become pending as soon as the originating document has been issued. In Scotland, however, proceedings become pending only when service of the summons has been effected on the defender. The moment at which proceedings become pending under the national ...
183. No particular adjustments had to be made to the provisions of the 1968 Convention concerning provisional measures. The change in emphasis which the accession of further Member States introduced into the 1968 Convention consists in this field entirely in the wide variety of provisional measures available in the law of Ireland and of the United Kingdom. This will involve certain difficulties where provisional judgments given in these States have to be given effect by the enforcement procedures of the original Member States of the Community. However, this problem does not affect only provisional measures. The integration of judgments on the main issue into the respective national enforcement procedures also involves difficulties in the relationship between Ireland and the United Kingdom on the one hand and the original Member States of the Community on the other (see paragraph 221 et seq.).
184. Article 25 emphasizes in terms which could hardly be clearer that every type of judgment given by a court in a Contracting State must be recognized and enforced throughout the rest the Community. The provision is not limited to a judgment terminating the proceedings before the court, but also applies to provisional court orders. Nor does the wording of the provision indicate that interlocutory court decisions should be excluded from its scope where they do not provisionally regulate the legal relationships between the parties, but . are for instance concerned only with the taking of evidence. What is more, the legal systems of the original Member States of the Community describe such interlocutory decisions in way which corresponds to the terms given, by way example, in Article 25. Thus, in France court decisions which order the taking of evidence are also called 'jugements' ('d'avant dire droit'). In Germany they are termed '(Beweis) beschlüsse' of the court. Nevertheless, the provisions of the 1968 Convention governing recognition and enforcement are in general designed to cover only court judgments which either determine or regulate the legal relationships of the parties. An answer to the question whether, and if so which interlocutory decisions intended to be procedural assistance fall within the scope of the 1968 Convention cannot be given without further consideration.
185. This matter is of no great significance as between the original Member States of the EEC, or as between the latter and Denmark. All seven States are parties to the 1954 Hague Convention relating to civil procedure. The latter governs the question of judicial assistance, particularly in the case of evidence to be taken abroad, and its provisions take precedence over the 1968 Convention by virtue of Article 57. In any case, it is always advisable in practice to make use of the machinery of the Hague Convention, which particularly suited to the processes required for obtaining judicial assistance. See paragraph 238 and note 59 (7) on the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters and on the Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters.
186. It is only with the accession of the United Kingdom and Ireland to the 1968 Convention that the problem assumes any degree of .....
187. If it were desired that interlocutory decisions by courts on the further conduct of the proceedings, and particularly on the taking of evidence, should be covered by Article 25 of the 1968 Convention this would also affect decisions with which the parties would be, totally unable to comply, without the court s cooperation and the enforcement of which would concern third parties, particularly witnesses. It would therefore be impossible to 'enforce' such decisions under the 1968 Convention. It can only be concluded from the foregoing that interlocutory decisions which are not intended to govern the legal relationships of the parties, but to arrange the further conduct of the proceedings, should be excluded from the scope of Title III of the 1968 Convention.
188. With two exceptions (4), no formal amendments were required to Articles 26 to 30. The Working Party did,. however, answer some questions raised by the new Member States regarding the interpretation of these provisions. Basically, these concerned problems arising in connection with the application of the public policy reservation in Article 27 (1) (2), - the right to a hearing Article 27 (2) (3) -, and the nature of the obligation to confer recognition, as distinct from unenforceability (1). The fact that Article 28 makes no reference to the provisions of Section 6 Title II on jurisdiction agreements is intentional and deserves mention. When considering such agreements it must be borne in mind that the court seised of the proceedings in the State of origin must of its own motion take note of any agreement to the contrary (see paragraphs 22 and 174). 189. Article 26, second paragraph, introduces a special simplified procedure for seeking recognition modelled on the provisions governing the issue of orders for enforcement. However, this is not the only way in which recognition may be sought. Every court and public authority must take account of judgments which qualify for recognition, and must decide whether the conditions for recognition exist in a particular case, unless this question has already been determined under Article 26, second paragraph. In particular, every court must itself decide whether there is an obligation to grant recognition, if the principal issue in a foreign judgment concerns a question which in the fresh proceedings emerges as a preliminary issue. Each of these two recognition procedures involves a problem which the Working Party discussed. 190. (a) If proceedings are conducted in accordance with Article 26, second paragraph, the court may of its own motion take into account grounds for refusing recognition if they appear from the judgment or are known to the court. It may not however, make enquiries to establish whether such grounds exist, as this would not be compatible with the summary nature of the proceedings. Only if further proceedings are instituted by way of an appeal lodged pursuant to Article 36 can the court examine whether the requirements for recognition have been satisfied. 191. (b) The effects of a court decision are not altogether uniform under the legal systems obtaining in the Member States of the Community. A judgment delivered in one State as a decision on a procedural issue may, in another State, be treated as a decision on an issue of substance. The same type of judgment may be of varying scope and effect in different countries. In France, a judgment against the principal debtor is also effective against the surety, whereas in the Netherlands and Germany it is not [50].
Judgments dismissing an action as unfounded must be recognized. If a German court declares that it has no jurisdiction, an English court cannot disclaim its own jurisdiction on the ground that the German court was in fact competent. Clearly, however German decisions on procedural matters are not binding, as to the substance, in England. An English court may at any time allow (or, for substantive reasons disallow) an action, if proceedings are started in England after such a decision has been given by a German court.
192. (a) The 1968 Convention does not state in terms whether recognition may be refused pursuant to Article 27 (1) on the ground that the judgment has been obtained by fraud. Not even in the legal systems of the original Contracting States to the 1968 Convention is it expressly stated that fraud in obtaining a judgment constitutes a ground for refusing recognition. Such conduct is, however generally considered as an instance for applying the doctrine of public policy [51]. The legal situation in the United Kingdom and Ireland is different inasmuch as fraud constitutes a special ground for refusing recognition in addition to the principle of public policy. In the conventions on enforcement which the United Kingdom concluded with Community, States, a middle course was adopted by expressly referring to fraudulent conduct, but treating it as a special case of public policy [52]. As a result there is no doubt that to obtain a judgment by fraud can in principle constitute an offence against the public policy of the State addressed. However, the legal systems of all Member States provide special means of redress by which it can be contended, even after the expiry of the normal period for an appeal, that the judgment was the result of a fraud (see paragraph 197 et seq.). A court in the State addressed must always, therefore, ask itself whether a breach of its public policy still exists in view of the fact that proceedings for redress can be, or could have been, lodged in the courts of the State of origin against the judgment allegedly obtained by fraud. 193. (b) Article 41 (3) of the Irish Constitution prohibits divorce and also provides, as regards, marriages dissolved abroad: 'No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.' In so far as the jurisdiction of the 1968 Convention is concerned, this Article of the Constitution is of importance for maintenance orders made upon a divorce. The Irish' courts have not yet settled whether the recognition of such maintenance orders would, in view of the constitutional provisions cited, be contrary to Irish public policy.
194. Article 27 (2) is amended for the same reason as Article 20 (see paragraph 182). The object of the addition to Article 20 was to specify the moment when proceedings became pending before the Irish or British courts; in Article 27 (2) it intended to indicate which documents must have been served for the right to a hearing to respected.
195. The 1968 Convention makes a distinction in Articles 30 and 38 between ordinary and extraordinary appeals. No equivalent for this could be found in the Irish and United Kingdom legal systems. Before discussing the reason for this and explaining the implications of the solutions proposed by the Working Party (b), something should be said about the distinction between ordinary and extraordinary appeals in the Continental Member States of the EEC, since judges in the United Kingdom and Ireland will have to come to terms with these concepts which to them are unfamiliar (a).
196. (a) A clearly defined distinction between ordinary and extraordinary appeals is nowhere to be found. Legal literature and case law [53] have pointed out two criteria. In the first place neither an appeal ('Berufung') nor an objection to a default judgment ('Einspruch') has to be based on specific grounds; a party may challenge a judgment by alleging any kind of defect. Secondly execution is postponed during the period allowed for an appeal or objection, or after an appeal or objection has been lodged, unless the court otherwise directs or unless exceptionally, different legal provisions apply. Some legal systems contain a list of ordinary appeal procedures. 197. Part 1, Book 4 of the French Code de procedure civile of 1806, which still applies in Luxembourg, referred to extraordinary forms of appeal by which a judgment could be contested. It did not say, however, what was meant by ordinary appeals. Book 3 referred merely to 'courts of appeal'. However, in legal literature and case law appeals ('appel') and objections to default judgments ('opposition ) have consistently been classified as ordinary appeals. The new French Code de procedure civile of 1975 now expressly clarifies the position. In future only objections (Article 76) and appeals (Article 85) are to classified as ordinary appeals. 198. The Belgian Code judiciaire of 1967 has retained the French system which previously applied in Belgium. Only appeals and objections are considered as ordinary appeals (Article 21). 199. There is no distinction in Netherlands law between ordinary and extraordinary appeals. Academic writers classify the forms of appeal as follows: objections ('Verzet'- where a judgment is given in default), appeals ('Hoger beroep') appeals in cassation' ('Beroep in cassatie') and appeals on a point of law ('Revisie') are classed as ordinary appeals. 'Revisie' is a special form of appeal which lies only against certain judgments of the Hoge Raad sitting as a court of first instance. 200. The Italian text of Articles 30 and 38 refers to Impugnazione without distinguishing between ordinary and extraordinary appeals. However Italian legal literature distinguishes very clearly between ordinary and extraordinary appeals. Article 324 of the Codice di procedura civile states that a judgment does not become binding as between the parties until the periods within which the following forms of appeal may be lodged have expired: appeals on grounds of jurisdiction ('regolamento di competenza') appeals ('appello'), appeals in cassation ('ricorso per cassazione'), or petitions for review ('revocazione'), where these are based on one of the grounds provided for in Article 395 (4) and (5). These forms of appeal are classified as ordinary. 201. In Denmark, too the distinction 'between ordinary and extraordinary appeals is recognized only in legal literature. The deciding factor mentioned there is whether a form of appeal may be lodged within a given period without having to be based on particular grounds, or whether its admissibility depends on special, consent by court or ministry. Accordingly, appeals ('Anke and objections to default judgments Genoptagelse af sager, i hvilke der er afsagt Udeblivelsesdom') are classified as ordinary appeals. 202. Book 3 of the German Code of Civil Procedure Zivilprozessordnung is headed 'Rechtsmittel' means of redress ) and. it governs 'Berufung' (appeals) 'Beschwerde' (complaints) and 'Revision'(appeals on a point of law). These are frequently said to have in common the fact that the decision appealed against does not become binding ('rechtskräftig') until the period within which these means of redress may be lodged has expired. However Article 705 of the Code defines 'Rechtskraft' as the stage when these means of redress are no longer available. The material difference between the means of redress and other forms of appeal is that the former need not be based on particular grounds of appeal, that they are addressed to a higher court and that, as long as the decision has not become binding, enforcement is also postponed pursuant to Article 704 unless the court, as is almost invariably the case, allows provisional enforcement. If the expression 'ordinary appeal' is used at all, a reference to 'Rechtsmittel' (means of redress) is intended. German legal writers, in accordance with the phraseology used by the law, do not classify objections to default judgments as a means of redress ('Rechtsmittel') [54]. It does not involve the competence of a higher court. However, it has the effect of suspending execution and is not tied to specific grounds of appeal just like an ...
204. (b) In Ireland and the United Kingdom nothing which would enable a distinction to be drawn between ordinary and extraordinary appeals can be found in either statutes, cases or systematic treaties on procedural law. The basic method of redress is the appeal. Not only is this term used where review of a judgment can be sought within a certain period, without being subject to special grounds for appeal; it is also the name given to other means of redress. Some have special names such as; for default judgments, 'reponing' (in Scotland) or 'application to set the judgment aside' (in England, Wales and Ireland); or again motion (in Scotland) or' application' (in England, Wales and Ireland)'for a new trial' which correspond roughly to a petition for, review in Continental legal systems. They are the only forms of redress against a verdict by a jury. A further distinctive feature of the appeal system in these States is the fact that the enforceability of a judgment is not automatically .affected by the appeal period or even by the lodging of an appeal. However, the appellate court will usually grant a temporary stay of execution, if security is given. Finally there do exist in the United Kingdom legal procedures whose function corresponds to the ordinary legal procedures of Continental legal systems, but which are not subject to time limits. The judge exercises his discretion in deciding on the admissibility of each particular case. This is the case, for example, with default judgments. The case law of the European Court could therefore not be applied to the new Member States. The Working Party therefore made prolonged efforts to work out an equivalent for the United Kingdom and Ireland of the Continental distinction between ordinary and extraordinary appeals, but reached no satisfactory result. This failure was due in particular to the fact that the term 'appeal' is so many-sided and cannot be regarded, like similar terms in Continental law, as a basis for 'ordinary' appeals. The Working Party therefore noted that the legal consequences resulting from the distinction drawn in Articles 30 and 38 between ordinary and extraordinary appeals do not have to be applied rigidly, but merely confer a discretion on the court. Accordingly, in the interests of practicality and clarity, a broad definition of appeal seemed justified in connection with judgments of Irish and United Kingdom courts. Continental courts will have to use their discretion in such a way that an equal balance in the application of Articles 30 and 38 in all Contracting States will be preserved. To this effect they will have to make only cautious use of their discretionary power to stay proceedings, if the appeal is one which is available in Ireland or the United Kingdom only against special defects in a judgment or which may still be lodged after a long period. A further argument in favour of this pragmatic solution was that, in accordance with Article 38, a judgment is in any event no longer enforceable if it was subject to appeal in the State of origin and the appellate court suspended execution or granted a temporary stay execution.
205. In one respect the provisions of the 1968 Convention governing recognition required formal amendment. A certain lack of clarity in some of these provisions can be accepted since the European Court of Justice has jurisdiction to interpret them. However, Member States cannot be expected to accept lack of clarity where this might give rise to diplomatic complications with non-contracting States. The new Article 27 (5) is designed to avoid such complications. This may be explained by way of an example. A decision dismissing an action against a person domiciled in the Community is given in non-contracting State A. A Community State, B is obliged to recognize the judgment under a bilateral convention. The plaintiff brings fresh proceedings in another Community State, C which is not obliged to recognize the judgment ...
In future, it is certain that this is not the case. In order to avoid unnecessary discrepancies, the text of the new provision is based on Article 5 of the Hague Convention of 1 February 1971 on the recognition and enforcement of foreign judgments in civil and commercial matters. Its wording is slightly wider in scope than would have been required to avoid diplomatic complications. A judgment given in non-contracting State takes priority even where it has to be recognized, not by virtue of international convention but merely under national law. For obligations under conventions not to recognize certain judgments, see paragraph 249 et seq. 206. The Working Party s efforts were almost entirely confined to deciding which courts in the new Member States should have jurisdiction in enforcement proceedings, and what appeal procedures should be provided in this context. In this connection four peculiarities of United Kingdom and, to a certain extent, Irish law had to be considered. The Working Party took no decision on amendments to deal with the costs of the enforcement procedure. On this point, however reference should be made to the judgment of the Court of Justice of the European Communities of 30 November 1976 (Case 42/76). According to that decision, Article 31 prohibits a successful plaintiff from bringing fresh proceedings in the State in which enforcement is sought. But the Contracting States are obliged to adopt rules on costs which take into account the desire to simplify the enforcement procedure. 207. The Working Party also abandoned attempts to draft provisions in the Convention on seizure for international claims, although it was clear that problems would occur to a certain extent if debtors and third party debtors were domiciled in different States. If, in one State, the court of the debtors domicile has jurisdiction over seizure for such claims, then the State of domicile of the third party debtor may regard the making of the order for seizure applicable to the latter as a violation of its sovereignty, and refuse to enforce it. In such a situation the creditor can seek assistance by obtaining a declaration that the judgment is enforceable in the State of domicile of the third party debtor, and enforcing the debtor s claim against the third party in that State provided that this State assumes international jurisdiction over such a measure. 208. (a) United Kingdom and Irish law does not have the exequatur system for foreign judgments. In these countries an action on the basis of the foreign judgment is necessary unless, as in the United Kingdom, a system of registration applies to the judgments of certain States (including the six original Member States with the exception of Luxembourg) (see paragraph 6). In that case the foreign judgments, if they are to be enforced, must be registered with a court in the United Kingdom. They then have the same force as judgments of the registering court itself. The application has to be lodged by the creditor in person or by solicitor on his behalf. Personal appearance is essential; lodging by post will not suffice. If the application is granted, an order to that effect will be entered in the register kept at the court. Except in Scotland, however the United Kingdom has no independent enforcement officer like the French 'huissier' or the German 'Gerichtsvollzieher' (see paragraph 221). Only the court which gave the judgment or where the judgment was registered can direct enforcement measures. Since this system of registration affords the same protection to a foreign judgment creditor as does the exequatur system on the Continent the United Kingdom registration system could also be accepted for applying the provisions of the 1968 Convention.
210. (c) As far as the enforcement of foreign judgments is concerned the United Kingdom traditionally concedes special treatment to maintenance orders (see paragraph 7). Until now they have been enforced only in respect of a few Commonwealth countries and Ireland, and their enforcement is entrusted to courts different from those responsible for enforcing other judgments. Since the 1968 Convention contains no provisions precluding different recognition procedures for different types of judgment, there is no reason why maintenance orders cannot be covered by a special arrangement within the scope of the 1968 Convention. This will permit the creation of a uniform system for the recognition of maintenance orders from the Community and the Commonwealth and, in view of the type of court having jurisdiction, the setting up of central agency to receive applications for enforcement (see paragraph 218). For agreements concerning maintenance see paragraph 226. 211. (d) Finally there were still problems in connection with judgments ordering performance other than the payment of money. Judgments directing a person to do a particular act are not generally enforceable under United Kingdom and Irish law but only in pursuance of special legal provisions. These provisions cover judgments ordering the delivery of movable property or the transfer of ownership or possession of immovable property, and injunctions by which the court may in its discretion order an individual to do or refrain from doing a certain act. Enforcement is possible either by the sheriff's officer using direct compulsion or indirectly by means of fines or imprisonment for contempt of court. In Scotland, in addition to judgments for the transfer of possession or ownership of immovable property and preventative injunctions, there are also 'decrees ad factum prestandum' by means of which the defendant can be ordered to perform certain acts, particularly to hand back movable property. 212. (aa) If an application is made in the Federal Republic of Germany for the enforcement of such judgment given in Ireland or the United Kingdom, the court must apply the same means of compulsion as would be applicable in the case of a corresponding German judgment, i. e. a fine or imprisonment. In the reverse situation, the United Kingdom and Irish courts may have to impose penalties for contempt of court in the same way as when their own orders are disregarded. 213. (bb) The system for enforcing orders requiring the performance of a specific act is fundamentally different in other States of the Community, e.g. Belgium, France and Luxembourg. The defendant is ordered to perform the act and at the same time to pay a sum of money to the plaintiff to cover a possible non-compliance with the order. In France he is initially only threatened with a fine astreinte). In case of non-compliance, a separate judgment is, required and is hardly ever as high as the fine originally threatened. In Belgium the amount of the fine is already fixed in the judgment ordering the act to performed [56]. With a view to overcoming the difficulties which this could cause for the inter-State enforcement of judgments ordering specific acts. Article 43 provides that, if the sanction takes the form of a fine ('astreinte ), the original court should itself fix the amount. Enforcement abroad is then limited to the astreinte. French, Belgian, Dutch and Luxembourg judgments can be enforced without difficulty in Germany, the United Kingdom and Italy if the original court has proceeded on that basis. However, the 1968 Convention leaves open the question whether such a fine for disregarding a court order can also be enforced when it accrues not to the judgment creditor but to the State. Since this is not a new problem arising out of the accession of the new Member States, the Working Party did not express a view on the matter.
214. Apart from the inclusion of a term equivalent in the Irish and United Kingdom legal systems to ordinary appeal (see paragraph 195), and apart from Article 44 which deals with legal aid (see paragraph 223), the formal adjustments to Articles 32 to 45 relate exclusively to the courts having jurisdiction and the possible types of appeal against their decisions. (See paragraph 108 for adjustments relating to maintenance. 215. (a) For applications for declaration of enforceability (see paragraph 208) of judgments other than maintenance orders only one court has been given jurisdiction in each of Ireland England and Wales, Scotland and Northern Ireland. This is due to the peculiarities of the court systems in these countries (see paragraphs 11, 208 and 209). 216. If the judgment debtor wishes to argue against the authorization of enforcement, he must lodge his application to set the registration aside not with a higher court, as in Germany, France and Italy, but, as in Belgium and the Netherlands with the court which registered the judgment. The proceedings will take the form of an ordinary contentious civil action. A corresponding position applies regarding the appeal which the applicant may lodge if his application is refused, although in such a case it is a higher court which has jurisdiction in all seven Continental Member States of the Community. 217. The adjustment of the second paragraph of Article 37 and of Article 41 gave rise to difficulties with regard to the solution adopted for Articles 32 and 40. In the original Member States of the Community an appeal against judgments of courts on which jurisdiction is conferred by Articles 37 and 40 could only be lodged on a point of law and with the highest court in the State. It was therefore sufficient to make the same provision apply to the appeals provided for in the 1968 Convention and in the case of Belgium, simply to bypass the Cour appel. The purpose of this arrangement is to limit the number of appeals, in the interests of rapid enforcement, to a single appeal which may involve a full review of the facts and a second one limited to points of law. It would therefore not have been enough to stipulate for the new Member States that only one further appeal would be permitted against the judgment of the court which had ruled on an appeal made by either the debtor or the creditor. Instead, the second appeal had to be limited to points of law. Ireland and the United Kingdom will have to adapt their appeal system to the requirements of the 1968 Convention. In the case of Ireland which has only a two-tier superior court system the Supreme Court is the only possibility. Implementing legislation in the United Kingdom will have to determine whether the further appeals should go direct to the House of Lords, depending on the judicial area concerned (see paragraph 11), to the Court of Appeal in England and Wales, to the court of The same name in Northern Ireland or to the Inner House of the Court of Session in Scotland. The concept of appeal on a point of law is the nearest equivalent as far as United Kingdom law is concerned to the 'Rechtsbeschwerde' of German law and the appeal in cassation in the legal systems of the other original Member States of the Community, the common feature of which is restriction of the grounds of appeal to an incorrect application of the law (as opposed to an incorrect assessment of the facts). Even in relation to appeals in cassation and 'Rechtsbeschwerde' the distinction between points of law and matters of fact is not identical; for the United Kingdom and Ireland, too, this will remain a matter for its own legislation and case law to clarify. Traditionally the leave of the Minister for Justice is required for an appeal to the highest Danish court at third instance. The Working Party was initially doubtful whether it should accept this in the context of the 1968 Convention. It emerged however, that the Convention does not guarantee a third instance in all circumstances. In order to relieve the burden on their highest courts Member States may limit the admissibility of the appeals provided for in Article 41. The Danish solution is only one manifestation of this idea. There was also no need in the case of Denmark to stipulate that the appeal to the highest court should be limited to a point of law. When granting leave the Ministry of Justice can ensure that the appeal concerns only questions of law requiring further elucidation. Denmark has given ...
218. (b) In Ireland the proposed arrangement also applies to maintenance orders. In the United Kingdom, however maintenance orders are subject to a special arrangement (see paragraph 210). In England and Wales and in Northern Ireland registration is a matter for the Magistrates Courts, and in Scotland for the Sheriff Courts. These courts also have jurisdiction in respect of other maintenance matters including the enforcement of foreign maintenance orders. Foreign maintenance creditors cannot, however have recourse to any of the above courts directly, but must apply to the Secretary of State [57], who will transmit the order to the appropriate court. This arrangement was made in the interest of the foreign maintenance creditors because Magistrates Courts and Sheriff Courts have lay justices and no administrative machinery. As regards jurisdiction in respect of appeals which may be brought by either the creditor or the debtor under the 1968 Convention, the usual system will continue to apply, i. e. the appeal is decided by the court which registered the order or refused such registration. It is impossible for a maintenance order to be amended during registration proceedings, even if it is claimed that the circumstances have changed (see paragraph 104 et seq.). The special situation regarding maintenance orders in the United Kingdom offers a series of advantages to the maintenance creditor. After forwarding the order to the Secretary of State, he has virtually no further need to concern himself with the progress of the proceedings or with their enforcement. The rest will be done free of charge. The Secretary of State transmits the order to the appropriate court and, unless the maintenance creditor otherwise requests, the clerk of that court will be regarded as the representative item within the meaning of Article 33, second paragraph, second sentence. In England and Wales and in Northern Ireland the clerk in question will also be responsible for taking the necessary enforcement measures and for ensuring that the creditor receives the proceeds obtained. Only in Scotland need the creditor under the order seek the services of solicitor when applying for enforcement following registration of an order. The Law Society of Scotland undertakes to provide solicitors whose fees are, if necessary, paid in accordance with the principles of legal aid. Should the maintenance debtor move to another judicial area in the United Kingdom (see paragraph 11), a maintenance order will unlike other judgments, be automatically registered with the court which then has jurisdiction. For agreements concerning maintenance, see paragraph 226. 219. (a) The United Kingdom asked whether Article 34 excludes the possibility of notifying the debtor that an application for registration of a foreign judgment has been lodged. One of the aims of Article 34 is to secure the element of surprise which is essential if measures of enforcement are to be effective. Therefore, although this 'provision does not expressly forbid notifying the debtor in the proceedings of the application for the grant of an enforcement order, such notification should be confined to very exceptional cases. An example might be an application for registration made a long time after the original judgment was given. In any case, the court may not consider submissions from the debtor, whether or not he was notified in advance. 220. (b) The appeal provided for in Article 36 can be based inter alia on the grounds that the judgment does not come within the scope of the 1968 Convention, that it is not yet enforceable or that the obligation imposed by the judgment has already been complied with. However, the substance of the judgment to be enforced or the procedure by which it came into existence can be reviewed only within the limits of Articles 27 and 28. For the adjustment of maintenance orders, see paragraph 108. 221. (c) The Working Party discussed Article 39 length. The provision in question is modelled on the French legal system and legal systems related to it, to which the institution of 'huissier' is familiar. Under these systems measures of enforcement in respect of movable property or contractual claims belonging to the debtor can be taken, without involving the court, by instructing a 'huissier' to deal with their execution. It is for the creditor to choose between the available ...
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This position will have to be altered by the implementing legislation of these States, which will have to introduce protective measures, in so far as this consequence does not arise as an automatic result of the entry into force of the 1968 Convention for one of these States (see paragraph 256). The 1968 Convention does not guarantee specific measures of enforcement to the creditor. Neither is it in any way incompatible with the 1968 Convention to leave the measures of enforcement entirely to the court. The 1968 Convention contains no express provision obliging the Member States to employ an institution similar to the French 'huissier . Even within its original scope, creditors have to apply directly to the court in the case of certain measures of enforcement; in Germany, for example, they would be required to do so in the case of enforcement against immovable property. It certain however that in the German text the phrase 'in das Vermogen des Schuldners' ('against the property of the party against whom enforcement is sought') does not mean that measures of enforcement are permissible as against third parties. The words quoted above could be omitted without changing the meaning of the provision. The question under what conditions measures of enforcement are possible against persons other than the judgment debtor is to be answered solely on the basis of national law. But the qualifications contained in Article 39 must also be observed. The court enforcing the judgment need not be the one which grants the order of enforcement or registers the foreign judgment. Therefore, for the purposes of enforcement under the 1968 Convention, Denmark can retain its present system, by which execution is entrusted to a special enforcement judge. 222. (d) For the problems presented by the system of astreintes which applies in some Member States, see paragraph 213. 223. (e) In its present form, Article 44 does not provide for the case of a party who had been granted only partial legal aid in the State in which the judgment was given. Although this did not involve an adjustment problem specifically due to the accession of the new Member States, the Working Party decided to propose an amendment. The Working Party discussions revealed that if the text were to remain in force in its present form it could result in some undesirable complications. The Working Party proposal was largely based on the formulation of Article 15 of the Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations which has now come into force. This provision opts for a generous solution: even if only partial legal aid was granted in the State of origin, full aid is to be granted in the enforcement proceedings. This has a number of further advantages: As the main application of Article 44 as amended relates to maintenance claims, the amended version contributes to the harmonization of provisions in international conventions. Moreover, it leads to a general simplification of applications. Since the rules concerning the granting of partial legal aid are not the same in all the Contracting States, the amended version also ensures a uniform application of the legal aid provisions. Lastly, it secures the surprise effect of enforcement measures abroad, by avoiding procedural delays caused by difficult calculations concerning the applicant s share in the costs. The first paragraph of Article 44 does not however, oblige States which do not at present have a system of legal aid in civil matters to introduce such a system. 224. (f) The reason for the new second paragraph of Article 44 relates to the jurisdiction of the Danish administrative authorities (see paragraph 67) whose services are free. No question of legal aid therefore arises. The new provision is designed to ensure that the enforcement of Danish maintenance orders is not, for this reason, at a disadvantage in the other EEC countries by comparison with maintenance orders from EEC countries other than Denmark.
Section 3 certainly admissible in appellate proceedings where the debtor appeals against registration or against a declaration of enforceability, or the creditor against a refusal to register. However, all the other means of giving evidence which are normally admissible must also be available in those proceedings. 225. The discussion of Articles 46 to 49 centred on whether the new Member States, in accordance with their legal tradition, could require an affidavit, in particular to the effect that none of the grounds for refusing recognition, specified in Articles 27 and 28, obtain. Affidavit evidence The addition to Article 46 (2) is proposed for the reasons given in paragraphs 182 and 194.
226. In England and Ireland there is no equivalent of enforceable instruments. In Scotland instruments establishing a clearly defined obligation to perform a contract can entered in a public register. An extract from the public register can then serve as a basis for enforcement in the same way as a court judgment. Such extracts are covered by Article 50. In the United Kingdom, the courts having jurisdiction for recognition
and enforcement of maintenance orders are different from those concerned
with other kinds of judgment (see paragraphs 210 and 218). It is for the
internal Jaw of the United Kingdom to determine whether foreign court
settlements concerning maintenance should be treated as maintenance orders
or as other judgments. 227. The outcome of the discussion of Articles 52 and 53 has already
been recorded elsewhere (see paragraphs 73 et seq. and 119).
228. Article 54 continues to apply to the relationships between the original Member States. For their relationships with the new Member States, and the relationships of the new Member States with each other, an appropriate transitional provision is included in Article 34 of the proposed Accession Convention. It is closely modelled on Article 54 of the 1968 Convention, but takes into ...
229. 1. The provisions on jurisdiction in the 1968 Convention apply in the new Member States only in their amended version and only to proceedings instituted after the Accession Convention has come into force, and hence after the 1968 Convention has come into force, in the State in question (Article 34 (1)). 230. 2. The amended version also applies to proceedings instituted in the Original Member States after that date. Jurisdiction in respect of proceedings instituted in the original Member States before that date but after 1 February 1973 will continue to be determined in accordance with the original text of the 1968 Convention (Article 34 (1)). It is to be noted, as regards the relationships of the old Member States with each other, that under Article 39 of the Accession Convention the amended version can only come into force simultaneously for all six of them.
231. The recognition and enforcement of judgments are in all respects governed by the Convention as amended, provided the transitional period had already ended at the time of institution of the proceedings. For this purpose, the Accession Convention must have come into force by that time both in the State of origin and in the State subsequently addressed (Article 34 (1)). It is not sufficient for the Accession Convention to be in force in the former State only, since rules of exorbitant jurisdiction may still be invoked under Article 4 of the 1968 Convention against domiciliaries of the State subsequently addressed if that State was not also a party to the Accession Convention at the time of institution of the proceedings. This would render an obligation to recognize and enforce a judgment in that State, without any preliminary review unacceptable. If we assume that the Accession Convention comes into force for the original Member States of the Community and Denmark on 1 January 1981 and an action is brought in Germany against a person domiciled in Denmark on 3 January 1981, then a judgment on 1 July 1981 finding in favour of the plaintiff would be enforceable irrespective of transitional provisions even if, say, the United Kingdom did not become a party to the Convention until 1 December 1981. However, if in this example the action was brought and judgment given against a person domiciled in the United Kingdom, Article 34 (1) would not govern recognition and enforcement in the United Kingdom. That would be a true transitional case. Paragraphs (2) and (3) of Article 34 deal with judgments during the transitional period, i. judgments given after the Accession Convention has come into force in the State addressed, but in proceedings which were instituted at a time when, either in the State of origin or in the State addressed, the Accession Convention was not yet in force. In Article 34 (2) and (3) a distinction is drawn between cases involving only the original Member States of the Community and those involving new Member States as well.
232. Article 34 (2) makes the recognition and enforcement of judgments among the original Member States of the Community subject without any restriction to the 1968 Convention as amended, even if the actions were started before the entry into force of the Accession Convention which will necessarily be simultaneous in those States (see the end of paragraph 230). This amounts indirectly to statement that the situation as regards the recognition and enforcement of judgments among those States remains that in Article 54 of the 1968 Convention in the case of judgments given before the entry into force of the Accession Convention. The most important implication of Article 34 (2) is that in proceedings for the recognition of judgments among the original Member States of the Community there is to be no consideration of whether the court giving the ...
233. The arrangements obtaining under Article 34 (3) for the recognition and enforcement of judgments between the original Member States and the new Member States, or as between the new Member States, differ somewhat from those applying among the original Member States. Article 34 (3) is concerned with the possibility of recognition and enforcement being sought in one of the new Contracting States of a judgment from an original Contracting State or from another new Contracting State. Apart from the cases referred to in paragraph 231, this is possible after the end of the transitional ,period subject to three requirements being met. 234. (a) The judgment must have been given after the Accession Convention came into force in both States. 235. (b) In addition, the proceedings must have been instituted, in the words of the Convention before 'the date of entry into force of this Convention, between the State of origin and the State addressed'. The purport of this is that, at the time when the proceedings were instituted, the Accession Convention may have come into force either in the State of the court giving the judgment for which recognition is sought, or in the State in which recognition and enforcement are subsequently sought, but not in both of these States. 236. (c) Finally, the jurisdiction of the court giving the judgment for which recognition is sought must satisfy certain criteria which the court in the State addressed must check. These criteria exactly match what Article 54 of the 1968 Convention laid down regarding transitional cases which were pending when that Convention came into force between the six original Member States. In proceedings for recognition, the jurisdiction of the court which gave judgment is to be accepted as having been valid, provided one of two requirements is met: (aa) The judgment must be recognized where the court in the State of origin would have had jurisdiction if the Accession Convention had already been in force as between the two States at the time when the proceedings were instituted. (bb) The judgment must also be recognized where the court jurisdiction was covered at the time when the proceedings were instituted by another international convention which was in force between the two States. Reverting to the example in paragraph 232, the position would be as follows: the French judgment would indeed have been given after the Accession Convention had come into force in Ireland and France. The proceedings would have been instituted at a time when the Accession Convention was not yet in force in France (or in Ireland). Had this Convention already been in force as between France and Ireland at that time, the French courts would no longer have been able to found their jurisdiction on Article 14 of the Civil Code and hence, it must further be assumed would have been unable to assume jurisdiction. Lastly, there is no bilateral convention between France and Ireland concerning the direct or indirect jurisdiction of the courts. Consequently, the judgment would not have had to recognized in Ireland. If one changes the example so that it now concerns France and the United Kingdom, one has to take into consideration the Convention between those two States of 18 January 1934 providing for the reciprocal enforcement of judgments. However, jurisdiction deriving from ...
If the example concerned Germany and the United Kingdom, and the defendant
resident in the United Kingdom had agreed orally before the commencement
of the proceedings that the German courts should have jurisdiction, then
under the 1968 Convention the judgment would have to be recognized and
enforced in the United Kingdom. Under Article IV (1) (a) of the Convention
between the United Kingdom and Germany of 14 July 1960, oral agreement'
sufficient to give grounds for jurisdiction for the purposes of recognition
('indirect' jurisdiction). However, the German court would have had to
be a 'Landgericht', since 'Amtsgericht' judgments are not required to
be recognized under that Convention (Article I (2)). In the event of a
written agreement on jurisdiction, even the judgment of an 'Amtsgericht'
would have to be recognized, under Article 34 (3) of the Accession Convention,
as the 'Amtsgericht' would in that case have assumed jurisdiction under
circumstances in which jurisdiction would also have had to be assumed
if the Accession Convention had been in force between Germany and the
United Kingdom.
237. The Working Party included in Article 55 the bilateral conventions between the United Kingdom and other Member States of the Community. No such conventions have been concluded by Ireland and Denmark.
238. Great difficulties arose when an attempt was made to explain to the new Member States the exact scope of Article 57, the main reason being the statement that the Convention 'shall not affect' any conventions in relation to particular matters, without stating how the provisions in such conventions could be reconciled with those of the 1968 Convention where they covered only part of the matters governed by the latter, which is usually the case. Special conventions can be divided into three groups. Many of them contain only provisions on direct jurisdiction, as in the case with the Warsaw Convention of 12 October 1929 for the unification of certain rules relating to international carriage by air and the Additional Protocols thereto, and the Brussels Convention (* Not to be confused with the Brussels Convention of the same date for the unification of certain rules relating to penal jurisdiction in matters of collision) relating to the arrest of seagoing ships which is of great importance for maritime law (Article 7) (see paragraph 121). Most conventions govern only the recognition and enforcement of judgments, and merely refer indirectly to jurisdiction in so far as it constitutes a precondition for recognition. This is the case with the Hague Convention of 15 April 1958 on the recognition and enforcement of decisions relating to maintenance obligations towards children. Finally, there are also Conventions which contain provisions directly regulating jurisdiction as well as recognition and enforcement as for example the Berne Convention on carriage by rail and the Mannheim Convention for the navigation of the Rhine. It is irrelevant for present purposes whether the conventions contain additional provisions on the applicable law or rules of substantive law. 239. (a) It is clear beyond argument that where a special convention contains no provisions directly governing jurisdiction, the jurisdiction provisions of the 1968 Convention apply. It is equally clear that where all the Contracting States are parties to a special convention containing provisions on ....
... jurisdiction, those provisions prevail. But for 'Situations between these two extremes the solution provided by Article 57 is a great deal less clear. This is particularly the case for a number of questions, which arise where only the State of origin and the State addressed are parties to the convention. The problems become acute where only one of these two States is a party. If both States are parties to a special convention, which governs only direct jurisdiction, will the provisions of the 1968 Convention regarding examination of jurisdiction by the court of its own motion (Article 20), lis pendens (Article 21) and enforcement apply? Do the provisions of the 1968 Convention on the procedure for recognition and enforcement apply, if a special convention on the recognition and enforcement of judgements, does not deal with procedure? Can a person domiciled in a Contracting State which is not a party to a special convention be sued in the courts of another Contracting State on the basis of jurisdiction provisions in the special conventions, or can the State of domicile which is not a party to the special convention claim that the jurisdiction rules of the 1968 Convention must be observed? Must a judgment given in a court which has jurisdiction only under a special convention be recognized and enforced even in a Contracting State which is not a party to that particular special convention? And, finally, what is the position where the special convention does not claim to be exclusive? 240. Tentative and conflicting views were expressed within the Working Party as to how these problems are to be solved in interpreting Article 57 in its original form. It become clear that it would not be practicable to provide a precise solution to all of them, particularly since it is impossible to predict the form of future conventions. It was however appropriate, in the interests of clarifying the obligations about to be assumed by the new Member States, to include in the Accession Convention an authentic interpret anon which concerns some problems which are of especial importance. The opportunity was taken to make a drafting improvement to the present Article 57 of the 1968 Convention - the new paragraph 1 of this Article - which will speak of recognition or enforcement. By reason of the purely drafting nature of the amendment to the text, the provision laying down the authentic interpretation of the new Article 57 (1) also applies to the present version. The solution arrived at is based on the following Principle. The 1'968 Convention contains the rules generally applicable in all Member States; provisions in special conventions are special rules which every State may make prevail over the 1968 Convention by becoming a party to such a convention. In so far as a special convention does not contain rules covering a particular matter the 1968 Convention applies. This is also the case where the special convention includes rules of jurisdiction which do not altogether fit the inter-connecting provisions of the various parts of the 1968 Convention, especially those governing the relationship between jurisdiction and enforcement. The overriding considerations are simplicity and clarity of the legal position. The most important consequence of this is that provisions on jurisdiction contained in special conventions are to be regarded as if they were provisions of the 1968 Convention itself, even if only one Member State is a Contracting Party to such a special convention. Even Member States which are not Contracting Parties to the special convention must therefore recognize and enforce decisions given by courts which have jurisdiction only under the special convention. Furthermore in the context of two States which are parties to a special convention, a person who wishes to obtain the recognition or enforcement of a judgment may rely upon the procedural provisions of the 1968 Convention on recognition and enforcement. At the same time, the Working Party did not wish to reach a final conclusion on the question whether the general principle outlined above could be consistently applied in all its ramifications. To take a critical example, it was left open whether exclusive jurisdiction under the provisions of special convention must invariably be applied. The same applies to the question whether a case of lis pendens arising from a special convention is covered by Article 21 of the 1968 Convention. The Working Party therefore preferred to provide expressly for the application or Article 20 and to leave the solution of the outstanding problems to legal literature and case law. For the implications of an authentic interpretation of Article 57 for maritime jurisdiction, see paragraph 121. 241. A river boatman domiciled in the Netherlands is liable for damages arising from an accident which occurred on the upper Rhine. It is however no ...
242. It is not possible in such a case for either German or French courts to assume jurisdiction under Article 5 (3) or any other provision of the 1968 Convention. According to Article 34 (2) (c) and Article 35a of the revised Rhine navigation Convention of 17 October 1868 in the version of the Protocol of 25 October 1972 [60], jurisdiction in such cases belongs to the court of the State which was the first or only one seised of the matter. That court must, however, take into account Article 20 of the 1968 Convention, even though no equivalent of this Article exists in the Rhine navigation Convention. For example, if the defendant fails to enter an appearance, the court must of its own motion (see paragraph 22) ascertain whether all means have been exhausted of determining exactly where the accident occurred, for only if this cannot be determined does the court have jurisdiction under the abovementioned provisions of the Rhine navigation Convention. 243. If the court first seised of the matter was French then any judgment of that court must be recognized in Germany. The Rhine navigation Convention is even stricter than the 1968 Convention in forbidding any re-examination of the original judgment in the State addressed. According to the correct interpretation of Article 57 of the 1968 Convention the judgment creditor has the choice of availing himself of the enforcement procedure provided by the Rhine navigation Convention or by the 1968 Convention. However, if he proceeds under the 1968 Convention the court may not refuse recognition on any of the grounds given in Article 27 or Article 28 of the 1968 Convention. Unlike the enforcement procedure itself, the conditions for recognition and enforcement are exclusively governed by the special conventions in this example, the Rhine navigation Convention. 244. If, however, a judgment has been given in the court with jurisdiction at the place of destination pursuant to Article 28 (1) of the Warsaw Convention of 12 October 1929 for the unification of certain rules relating to international carriage by air the 1968 Convention applies fully to both recognition and enforcement, because the Warsaw Convention contains no provisions at all on these matters. The same applies where in maritime law the jurisdiction of the court of origin was based on the provisions governing arrest contained in the 1952 Brussels Convention (see paragraph 121). 245. If the boatman in the above example on Rhine navigation had been domiciled in Luxembourg, which is not a party to the Rhine navigation Convention, the position would be as follows: any jurisdiction assumed in France or Germany pursuant to the Rhine navigation Convention can no longer be regarded in Luxembourg as an infringement of the 1968 Convention. Under the provisions and procedure of the 1968 Convention, Luxembourg is obliged to recognize and enforce a judgment given by the German or French Rhine navigation courts. If, conversely, the boatman is sued in the court of his Luxembourg domicile, which is also permissible under the 1968 Convention, Germany and France would have to accept this, even though they are parties to the Rhine navigation Convention which does not recognize jurisdiction based on domicile.
246. Whether Article 57 also covers conventions under which one Member State of the Community undertakes not to recognize judgments given in another Member State remains an open question. It could be argued that the admissible scope of such conventions was governed exclusively by Article 59. International obligations of this sort can result from a special convention
which provides for the exclusive jurisdiction of the courts of one of
the Contracting Parties. Such an obligation can however also result indirectly
from the fact that the exercise of jurisdiction under the special convention
is linked to a special regime of liability. For example, the Paris Convention
of 1960 on third party liability in the field of nuclear energy, apart
from laying down rules of jurisdiction, recognition and enforcement:
The recognition and enforcement of a judgment which is given in a State not party to such a special convention and which is based on legal principles quite different from those outlined above could seriously undermine the operation of that special convention. The 1968 Convention should always be interpreted in such a way that no limitations liability contained in international conventions are infringed. The question however remains open whether this result is to be achieved by applying the public policy provision of Article 27 (1), by analogy with the new paragraph (5) of Article 27, or by a broad interpretation of Article 57. For conventions limiting liability in maritime law see paragraph 124 et seq. 247. Within the Working Party opinion was divided as to whether secondary Community law, or national laws adopted pursuant to secondary Community law, prevail over international agreements concluded between the Member States, in particular in the case of a convention provided for in Article 220 of the Treaty of Rome. There was, however, agreement that national and Community law referred to above should prevail over the 1968 Convention. This decision is embodied in Article 57; the provision is based on Article 25 of the preliminary draft Convention on the law applicable to contractual and non-contractual obligations.
248. By their accession to the Convention, the new Member States are also bound by the Joint Declaration made by the Contracting States at the time of the signing of the 1968 Convention. In the Declaration the States declare that they will arrange for regular periodic contacts between their representatives. The Working Party was unanimously of the opinion that consultations should also take place when a Member State intended to accede to a convention which would prevail over the 1968 Convention by virtue of Article 57. 249. This provisions refers only to judgments given against persons domiciled or habitually resident outside the Community. Such persons may also be sued on the basis of jurisdictional provisions which could not be invoked in the case of persons domiciled within the Community, and which are classed as exorbitant and disallowed pursuant to the second paragraph of Article 3. Nevertheless any judgment which may have been given is to be recognized and enforced in accordance with the 1968 Convention. As the Jenard, report explains it is intended that the Contracting States should remain free to conclude conventions with third States excluding the recognition and enforcement of judgments based on exorbitant jurisdictions even though the 1968 Convention permits this in exceptional cases. The aim of the proposed amendment to Article 59 is further to limit the possibility of recognition and enforcement. 250. The way this will work may be illustrated by an example. If a creditor has a claim to be satisfied in France against a debtor domiciled in that country, then Danish courts have no jurisdiction under any circumstances to decide this issue, even if the debtor has property in Denmark and even if the claim is secured on immovable property there. Supposing the debtor is domiciled in Norway, then if Danish national law so allows Danish courts may very well claim jurisdiction, e.g. on the basis of the presence in Denmark of property owned by the debtor. Normally, the judgment given in such a case would also be enforceable in the United Kingdom. The United Kingdom could however undertake in a convention with Norway an obligation to refuse recognition and enforcement of such a judgment. This kind of treaty obligation may not however extend to a case where the jurisdiction of the Danish courts is based on the ground that immovable property in, Denmark constitutes security for the debt. In such circumstances the judgment would enforceable even in the United Kingdom.
251. Ireland has no territorial possessions outside the integral parts of its territory. 252. The term 'United Kingdom' does not include the Channel Islands, the Isle of Man, Gibraltar or the Sovereign Base Areas in Cyprus. There is no obligation on the United Kingdom to extend the scope of the 1968 Convention to include these territories, even though it is responsible for their external relations. It might, however, be useful if the United Kingdom were to extend the 1968 Convention and it should be authorized to do so. It would have to undertake the necessary Adjustments itself, and there was no need to provide for them in the Accession Convention. The following adjustments would be required: indication of any exorbitant jurisdictions in the second paragraph of Article 3; a declaration as to whether in the newly included territories every appeal should be regarded as an ordinary appeal for the purposes of Articles 30 and 38; a declaration as to whether registration in any such territory in accordance with the second paragraph of Article 31 is effective only within its area; establishing which courts are competent under Articles 32, 37 and 40, the form in which the application should be made, and whether the adjustments in respect of the United Kingdom contained in the second paragraph of Article 37 as amended and in Article 41 as amended should also apply in the newly included territories. If any international conventions should apply to any one of the territories in question, appropriate adjustments would also have to be made to Article 55. The penultimate paragraph of the proposed addition to Article 60 relates to the fact that judgments of courts in these territories which do not belong to the United Kingdom can be challenged in the last instance before the Judicial Committee of the Privy Council. It would be illogical to bring Privy Council decisions within the scope of the 1968 Convention if they related to disputes arising in territories to which the 1968 Convention does not apply. 253. For the purposes of EEC law, Greenland is included in the European territory of Denmark. The special constitutional positions of the Faroe Islands led to a solution corresponding closely to that proposed for the territories for whose foreign relations the United Kingdom is responsible. This had to allow for the fact that both appellate and first instance proceedings which relate to the Faroes and are therefore conducted under the Code of Civil Procedure specially enacted for these islands can be brought in Copenhagen.
254. The Working Party was unanimous that any territory which becomes independent of the mother country thereby ceases to be a member of the European Community and, consequently, can no longer be a party to the 1968 Convention. It was unnecessary to provide for this expressly and, in any case, to have drafted such a provision would have gone beyond the Working Party terms of reference.
255. Formal adjustments to the Interpretation Protocol were few and fairly obvious. It became necessary to make only one short addition to its provisions: the courts in the new Member States which, in accordance with Article 2 (1) and Article 3, are required to request the Court of ...
The remaining formal adjustments concerned merely the scope (Article 1) and territorial application of the Protocol. Article 6, which deals with the latter point, is wholly based on Article 60 of the 1968 Convention (see paragraphs 251 to 254). Which authorities are to be designated as competent within the meaning of the third paragraph of Article 4 is a question to be decided entirely by the new Member States.
256. The extension of the Interpretation Protocol to the United Kingdom and Ireland will, however, in all probability also present a procedural problem. long-standing legal tradition in these States does not allow provisions of international treaties to become directly applicable as national law. In the United Kingdom legislation has to be passed transforming such provisions into national law. In many cases the legislative enactment does not follow precisely the wording of the treaty. The usual form of legislation in this State often calls for a more detailed phraseology than that used in treaty. The treaty and the corresponding national law are, therefore, to be carefully distinguished. If the implementing legislation in the United Kingdom follows the usual pattern, courts in that country would only rarely be concerned with the interpretation of the 1968 Convention, but mostly with interpretation of the national implementing legislation. Only when the latter is not clear would it be open to a court, under the existing rules of construction in that country, to refer to the treaty on which the legislation is based, and only when the court is then faced with a problem of interpretation of the treaty may it turn to the European Court of Justice. If the provisions of implementing legislation are clear in themselves, the courts in the United Kingdom may as a rule refer neither to the text of the treaty nor to any decision by an international court on its interpretation. This would undoubtedly lead to a certain disparity in the application of the Interpretation Protocol of 3 June 1971. The Working Party was of the opinion that this disparity could best be redressed if the United Kingdom could in some way ensure in its implementing legislation that the 1968 Convention will there too be endowed with the status of a source of law, or may at any rate be referred to directly when applying the national implementing legislation. In the event of a judgment of the European Court of Justice being inconsistent with a provision of the United Kingdom implementing legislation, the latter would have to be amended. It is also the case in Ireland that international agreements to which that State is a party are not directly applicable as national law. Lately, however, a number of Acts putting international agreements into force in national law have taken the form of an incorporation of the text of the agreement into national law. If the Act putting into force the 1968 Convention as amended by the Accession Convention were to take this form the problems described above in relation to the United Kingdom would not arise in the case of Ireland.
Extract from the Protocol to the preliminary draft Bankruptcy Convention (1975) (see paragraph 54) Certain details of this list have been amended by later documents which, however, are not themselves final. (aa) Bankruptcy proceedings: - Belgium: ‘faillite' – ‘faillissement';
- Belgium: ‘concordat judiciaire’ - 'gerechtelijk akkoord'/‘sursis
de paiement’ -'uitstel van betaling’;
- France: ‘reglement judiciaire', ‘procedure de suspension
provisoire des poursuites et d'apurement collectif du passif de certaines
entreprises';
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