| JENARD REPORT 1968
As a result of the safeguards granted to the defendant in the original proceedings, Title III of the Convention is very liberal on the question of recognition and enforcement. As already stated, it seeks to facilitate as far as possible the free movement of judgments, and should be interpreted in this spirit. This liberal approach is evidenced in Title III first by a reduction in the number of grounds which can operate to prevent the recognition and enforcement of judgments and secondly, by the simplification of the enforcement procedure which will be common to the six countries. It will be recalled that Article 1 , which governs the whole of the Convention, provides that the Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It follows that judgments given in a Contracting State in civil commercial matters by criminal courts or administrative tribunals must be recognized and enforced in the other Contracting States. Under Article 25, the Convention applies to any judgment, whatever the judgment may be called. It also applies to writs of execution (Vollstreckungsbefehl, Article 699 of the German Code of Civil Procedure) [2] and to the determination of costs (Kostenfestsetzungsbeschlug des Urkundsbeamten, Article 104 of the German Code of Civil Procedure) which, in the Federal Republic, are decisions of the registrar acting as an officer of the court. In decisions based on Article 104 of the German Code of Civil Procedure, the Costs are determined in accordance with a schedule laid down by law and on the basis of the judgment of the court deciding on the substance of the matter [3]. In the event of a dispute as to the registrar s decision, a fully constituted court decides the issue.
end of page: Official Journal of the European Communities No C 59/42 (05-03-1979) It follows from Article 1 that Title III cannot be invoked for the recognition and enforcement of judgments given on matters excluded from the scope of the Convention (status and legal capacity of persons, rules governing rights in property arising out of matrimonial relationship, wills and succession, bankruptcy and other similar proceedings, social security, and arbitration including arbitral awards). On the other hand, Title III applies to any judgment given by a court or tribunal of a Contracting State in those civil and commercial matters which fall within the scope of the Convention, whether or not the parties are domiciled within the Community and whatever their nationality. Recognition must have the result of conferring judgments the authority and effectiveness accorded to them in the State in which they were given. The words ‘res judicata’ which appear in a number of conventions have expressly been omitted since judgments given in interlocutory proceedings and parte may be recognized, and these do not always have the force of res judicata. Under the rules laid down in Article 26:
The first of these rules lays down the principle that judgments are to be recognized; recognition is to be accorded without the need for recourse to any prior special procedure. It is thus automatic, and does not require a judicial decision in the State in which recognition is sought to enable the party in whose favour judgment has been given to invoke that judgment against any party concerned, for example an' administrative authority, in the same way as a judgment given in that State. This provision means that certain legal provisions which in some countries, such as Italy, make the recognition of a foreign judgment subject to a special procedure (dichiarazione di efficacia) will be abolished. The Italian delegation stated that it was able to concur in this solution since the scope of the Convention was limited to matters relating to property rights. Furthermore, this system is the opposite of that adopted in numerous conventions, according to which foreign judgments are recognized only if they fulfil a certain number of conditions. Under Article 26 there is ' presumption in favour of recognition, which can be rebutted only if one of the grounds for refusal listed in Article 27 is present. The second rule concerns the case where the recognition of a judgment is itself the point at issue, there being no other proceedings involved and no question of enforcement. For example, a negotiable instrument is declared invalid in Italy by reason of fraud. The negotiable instrument is presented to a bank in Belgium. Reliance is placed on the Italian judgment. The bank is faced with two contradictory instruments. The Italian judgment would normally have to be recognized, but it may be that one of the grounds for refusal set out in Article 27 applies. In the event of a dispute it is hardly the task of the bank to decide on the grounds for refusal, and in particular on the scope of Belgian international public policy . The second rule of Article 26 offers a solution in cases of this kind. It allows the party seeking recognition to make use of the simplified procedure provided by the Convention for enforcement of the judgment. There is thus unification at the stage of recognition not only of the legal or administrative procedures which govern this matter in a number of States, but also in those countries which, like Belgium do not allow actions for a declaration that a judgment is not to be recognized. Only the party seeking recognition may make use of this simplified procedure, which was evolved solely to promote the enforcement of judgments, and hence their recognition. It would moreover be difficult to apply the procedure laid down if the party opposing recognition could also avail himself of it; the latter will have to submit his claims in accordance with the ordinary rules of the internal law of the State in which recognition is sought.
The third rule concerns the case where recognition of a judgment is raised as an incidental question in the course of other proceedings. To simplify matters, the Committee provided that the court entertaining the principal proceedings shall also have jurisdiction on the question of recognition. It will immediately be noticed that two conditions which are frequently inserted in enforcement treaties are not referred to in the Convention: it is not necessary that the foreign judgment should have become res judicata [1], and the jurisdiction of the court which gave the original judgment does not have to be verified by the court of the State in which the recognition is sought unless the matter in question falls within the scope of Sections 3 , 4 or 5 of Title II. Recognition may be refused if it is contrary to public policy in the State in which the recognition is sought. In the opinion of the Committee this clause ought to operate only in exceptional cases. As has already been shown in the commentary on Article 4, public policy is not to be invoked as a ground for refusing to recognize a judgment given by a court of a Contracting State which has based its jurisdiction over a defendant domiciled outside the Community on a provision of its internal law, such as the provisions listed in the second paragraph of Article 3 (Article 14 of the French Civil Code, etc.). Furthermore, it follows from the last paragraph of Article 27 that public policy is not to be used as a means of justifying refusal of recognition on the grounds that the foreign court applied a law other than that laid down by the rules of private international law of the court in which the recognition is sought. The wording of the public policy provision is similar to that adopted in the most recent conventions [2], in that it is made clear that there are grounds for refusal, not of the foreign judgment itself, but if recognition of it is contrary to public policy in the State in which the recognition is sought. It is no part of the duty of the court seised of the matter to give an opinion as to whether the foreign judgment is, or is not, compatible with the public policy of its country. Indeed, this might be taken as criticism of the judgment. Its duty is rather to verify whether recognition of the judgment would be contrary to public policy. Where judgment is given in default of appearance, recognition must be refused if the defendant was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence. Where judgment is given abroad in default of appearance, the Convention affords the defendant double protection. First, the document must have been duly served. In this connection reference must be made to the internal law of the State in which the judgment was given, and to the international conventions on the service abroad of judicial instruments. Thus, for example, a German court in which recognition of a Belgian judgment given in default of appearance against a person who is Germany is sought could, on the basis of the Agreement between Belgium and Germany of 25 April 1959, which was entered into to simplify application of the Hague Convention of 1 March 1954 on civil procedure, refuse recognition if the document instituting the proceedings was sent from Belgium to Germany by registered post since the Federal Republic of Germany does not permit this method of transmitting documents. Secondly, even where service has been duly effected, recognition can be refused if the court in which recognition is sought considers that the document was not served in sufficient time to enable the defendant to arrange for his defence. Looking at the second paragraph of Article 20, which lays down that the court of the State in which judgment is given must stay the proceedings if the document instituting the proceedings was not served on the defendant in sufficient time, it might be assumed that Article 27 (2) would apply only in exceptional cases. It must not be forgotten, however, that the second ...
... paragraph of Article 20 requires the court of the State in which judgment is given to stay proceedings only where the defendant is domiciled in another Contracting State.. There can be no doubt that the rule of law in a State would be disturbed if it were possible to take advantage of two conflicting judgments [1]. The case where a foreign judgment is irreconcilable with a judgment given by a national court is, in the existing conventions, either treated as a matter of public policy [2], as in the Convention between France and Belgium, the Benelux Treaty and the Convention between Belgium, and Germany, or is regulated by a special provision. In the opinion of the Committee, to treat this as a matter of public policy would involve the danger that the concept of public policy would be interpreted too widely. Furthermore, the Italian courts have consistently held that foreign judgments whose recognition is sought in Italy and which conflict with an Italian judgment do not fall within the scope of public policy. This is why the enforcement conventions concluded by Italy always contain two provisions, one referring to public policy, which serves the purpose of providing a safeguard in exceptional cases, and the other whereby the judgment must not conflict with an Italian judgment already given, or be prejudicial to proceedings pending in an Italian court [3]. There are also several other conventions which contain clause providing for refusal of recognition of a judgment which conflicts with another judgment already given by the courts of the State in which recognition is sought. In certain conventions, the judgment given in the State in which recognition is sought has to have become res judicata [4], in others it is sufficient for the judgment to be final and conclusive at that stage of procedure [5] and finally there are some which do not regulate the point [6]. The Committee preferred a form of wording which does not decide whether the judgment should have become res ju dicata or should merely be final and conclusive and left this question to the discretion of the court in which recognition is sought. The Committee also considered that, for refusal of recognition, it would be sufficient if the judgment whose recognition was sought were irreconcilable with a judgment given between the same parties in the State in which recognition was sought. It is therefore not necessary for the same cause of action to be involved. Thus, for example, a French court in which recognition of a Belgian judgment awarding damages for failure to perform a contract is sought will be able to refuse recognition if a French court has already given judgment in a dispute between the same parties declaring that the contract was invalid. The form of words used also covers the situation referred to in Article 5 (3) (c) of the Hague Convention on the recognition and enforcement of foreign judgments, under which recognition may be refused if the proceedings which gave rise to the judgment whose recognition is sought have already resulted in a judgment which was given in a third State and which would be entitled to recognition and enforcement under the law of the State in which recognition is sought. It is to be anticipated that the application of the provisions of Title II regarding lis pendens and related actions will greatly reduce the number of irreconcilable judgments.
Article 28 (preliminary questions) Recognition is not to be refused on the sole ground that the court which gave the original judgment applied a law other than that which would have been applicable under the rules of private international law of the State in which recognition is sought. However the Convention makes an exception for preliminary questions regarding the status or legal capacity of natural persons, rules governing rights in property arising out of a matrimonial relationship, wills and succession, unless the same result would have been reached by the application of the rules of private international law of the State in which recognition is sought. The Convention between Belgium and Germany contains a rule which is similar,
but confined to cases where the judgment concerns a national of the State
in which it is sought to give effect to that judgment. It is pointed out
in the report of the negotiators of that Convention that this exception
is justified by the fact that States reserve to themselves the right to
regulate the status of their nationals. The wording used is similar to
that of Article 7 of the Hague Convention on the recognition and enforcement
of foreign judgments in civil and commercial matters. The very strict rules of jurisdiction laid down in Title II and the safeguards granted in Article 20 to defendants who do not enter an appearance, make it possible to dispense with any review, by the court in which recognition or enforcement is sought, of the jurisdiction of the court in which the original judgment was given. The absence of any review of the substance of the case implies complete confidence in the court of the State in which judgment was given; it is similarly to be assumed, that that court correctly applied the rules of jurisdiction of the Convention. The absence of any review as whether the court in which the judgment was given had jurisdiction avoids the possibility that an alleged failure to comply with those rules might again be raised as an issue at the enforcement stage. The only exceptions concern, first, the matters for which Title II lays down special rules of jurisdiction (insurance, instalment sales and loans) or exclusive rules, and which, as has been shown, are in the six countries either of a binding character or matters of public policy, and, secondly, the case provided for in Article 59; reference should be made to the commentary on that Article. The second paragraph contains a provision which is already included in a number of conventions (Convention between Germany and Belgium; Hague Convention Article 9) and avoids recourse to time-wasting duplication in the exceptional cases where re-examination of the jurisdiction of the court of origin is permitted. The last paragraph of Article 28 specifies that the rules of jurisdiction are not matters of public policy within the meaning of Article 27; in other words, public policy is not to be used as a means of justifying a review of the jurisdiction of the court of origin [1]. This again reflects the Committee s desire to limit so far as possible the concept of public policy.
It is obviously an essential provision of enforcement conventions that foreign judgments must not be reviewed. The court of a State in which recognition of a foreign judgment is sought is not to examine the correctness of that judgment; 'it may not substitute its own discretion for that of the foreign court [2] nor refuse recognition' if it considers that a point of fact or of law has been wrongly decided [3].
Article 30 postulates the following situation: a party may, in the course of litigation, wish to plead a judgment which has been given in another Contracting State but has not yet become res judicata. In order to remedy the inconvenience which would result if such judgment were reversed, Article 30 allows the court to stay the proceedings upon the principal issue of which it ...
... is seised, until the foreign judgment whose recognition is sought has become res judicata in the State in which it was given. This power does not prevent the court from examining, before staying the proceedings, whether the foreign judgment fulfils the conditions for recognition laid down in Article 27. As has already been shown the Committee endeavoured to give the Convention a progressive and pragmatic character by means of rules of jurisdiction which break new ground as compared with the enforcement conventions concluded hitherto. This means, of course, that at the enforcement stage solutions must be found which follow from the rules of jurisdiction. The progress achieved by Title II of the Convention would be rendered nugatory if a party seeking enforcement in a Contracting State of a judgment given in his favour were impeded by procedural obstacles. The aim of Title II of the Convention is to strengthen the role of the court of the State in which the judgment was given. It must not be forgotten that that court must declare that it does not have jurisdiction ' if there are rules of exclusive jurisdiction which give jurisdiction to the courts of another State (Article 19); the court must also declare that it does not have jurisdiction, in cases where the defendant does not enter an appearance, if its jurisdiction is not derived from the Convention (first paragraph of Article 20). Moreover, the court must stay the proceedings in the absence of proof that the defendant has been able to arrange for his defence (second paragraph of Article 20). This role, as set out in Title II, is thus of prIme importance. If follows that the intervention of the court in which enforcement is sought is more limited than is usual under enforcement conventions. That court has in practice only two points to examine: public policy and whether the defendant has had the opportunity of defending himself. The other reasons for refusal conflicting judgments, preliminary questions, review of jurisdiction in relation to certain specific topics - can in fact, be regarded as akin to public policy. Since moreover, the Convention is confined to matters relating to property rights, public policy will only very seldom have any part to perfom. This limitation on the powers of the court in which enforcement is sought led to a simplification of the enforcement procedure. Furthermore, as "the position of the defendant in the original proceedings is well protected it is proper that the applicant for enforcement be enabled to proceed rapidly with all the necessary formalities in the State in which enforcement is sought, that he be free to act without prior warning and that enforcement be obtained without unnecessary complications. The Committee discussed the enforcement procedure at length before adopting it. There were several possibilities open to it: reference back to national laws but subject to certain rules of the Convention, ordinary contentious procedure, summary contentious procedure or ex parte application. Each of these solutions had its advantages and disadvantages. The Committee finally adopted a system for the whole Community based on ex parte application. This rapid and simple procedure will apply in all six States. This uniform solution has the advantage of creating a proper balance as between the various provisions of the Convention: uniform rules of jurisdiction in the six countries and identical procedures for enforcement. As has been shown, the Convention is based on the principle that a foreign judgment is presumed to be in order. It must, in principle, be possible to enforce it in the State in which enforcement is sought. Enforcement can be refused only if there is a ground for refusing recognition [1]. The foreign judgment must, however, be enforceable in the State in which it was given in order to be enforceable in the State in which enforcement is sought.
Before examInIng the Articles of the section on enforcement it seems appropriate to give on outline of the procedure which will be applicable in the six States. 1. The application, accompanied by the documents required under Articles 46 and 47, must be submitted to the authority specified in Article 32. The procedure for making the application governed by the law of the State in which enforcement is sought.
2. The court applied to must give its decision without delay, and is not able to summon the other party. At this stage no contentious proceedings are allowed.
3. If enforcement is authorized:
4. If enforcement is refused:
Under this Article a judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, the order for its enforcement has been issued there. As can be seen, this provision is almost identical with that contained in the European Convention providing a uniform law on arbitration [3]. The Committee did, in fact, take the view that judgments given in one ...
end of page: Official Journal of the European Communities No C 59/48 (05-03-1979) ... Contracting State should be enforceable in any other Contracting State as easily as arbitral awards. The legal systems of the Member States are already familiar with authorization of enforcement by means of an enforcement order. This is so, for example, in the case of judgments and decisions given by the European Community institutions (Article 92 of the ECSC Treaty, Article 192 of the EEC Treaty, Article 164 of the Euratom Treaty). It is also true of judgments and decisions falling within the scope of the Mannheim Convention [1]. The Convention of 30 August 1962 between Germany and the Netherlands also provides that judgments given in one of the two States are to be enforced in the other if enforcement is authorized by means of enforcement order. A rule similar to that in Article 31 , that is to sayan parte procedure, was contained in the Franco-German Treaty on the Saar of 27 October 1956. Business circles in the Saar have said that the rule has proved entirely satisfactory. About 80 % of enforcement proceedings have been successfully completed by means of the first ex parte written phase of the procedure. In the majority of cases judgment debtors have refrained from contesting the proceedings by means of an appeal. This is easily explained by the fact that cases of refusal of enforcement are exceptional, and the risk of having to bear the costs of the proceedings restrains the judgment debtor, unless he feels certain of winning his case. Article 31 does not purport to determine whether it is the judgment given in the State of origin, or the decision authorizing the issue of the enforcement order, which is enforceable in the State in which enforcement is sought. The expression ' on the application of any interested party' implies that any person who is entitled to the benefit of the judgment in the State in which it was given has the right to apply for an order for its enforcement. Article 32 specifies the authority in each of the Contracting States to which the application must be submitted and which will have jurisdiction. It was considered to be in the interests of the parties that each relevant authority be indicated in the Convention itself. The court to which local jurisdiction is given is that for the place of domicile of the party against whom enforcement is sought, or, if that party is not domiciled in the State in which enforcement is sought, the court for the place of enforcement, that is, where the judgment debtor has assets. The jurisdiction of the court for the place of enforcement is thus of minor importance. The provision requiring applications to be submitted to the court for the place where the judgment debtor is domiciled was included for the following reason. It is quite possible that in the State in which enforcement is sought the judgment debtor may possess property situated in the jurisdiction of different courts. If jurisdiction had been given only to the court for the place of enforcement, a choice between several courts would have been open to the applicant. Thus . an applicant who was unsuccessful in one court could, instead of availing himself of the methods of appeal provided for in the Convention, have applied to another court which would not necessarily have come to the same decision as the first court, and this without the knowledge of the other party, since the procedure is parte. Under Article 33 , the procedure and formalities for making the application are to be governed by the law of the State in which enforcement is sought. Reference must therefore be made to the national laws for the particulars which the application must contain the number of copies which must be submitted to the court, the authority to which the application must be submitted, also, where necessary, the language in which it must be drawn up, and whether a lawyer should be instructed to appear. The provisions to which reference must be made are the following: Belgium: Federal Republic of Germany, Netherlands and Italy: France:
Luxembourg: The application must be accompanied by the documents required to be produced under Articles 46 and 47. In the view of the Committee, if the applicant does not produce the required documents, enforcement should not be refused, but the court may stay the proceedings and allow the applicant time to produce the documents. If the documents produced are not sufficient and the court cannot obtain sufficient information, it may refuse to entertain the application. Finally, the applicant must, in accordance with the law of the State in which enforcement is sought, either give an address for service of process or appoint a representative ad litem within the area of jurisdiction of the court applied to. This provision is important in two respects: first for communicating to the applicant the decision given on the application (Article 35), and secondly in case the party against whom enforcement is sought wishes to appeal, since such an appeal must be lodged 'in accordance with the rules governing procedure in contentious matters' (Article 37). The respondent must therefore summon the applicant to appear; the furnishing of an address for service or the appointment of a representative enables the summons to be served rapidly, in accordance with the law of the country in which enforcement is sought, without risk of error and without all the hazards connected with the service of legal documents abroad. It will in fact usually happen that the applicant is domiciled outside the State in which enforcement is sought. The appointment of a representative ad litem has been provided for because the furnishing of an address for service is unknown in German law. The two methods will, of course, produce the same result. Article 34 provides that the court applied to shall give its decision without delay; 'the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.’ The Committee considered but rejected the idea of imposing on the court to which application is made a fixed period for giving its decision. Such a time limit is unknown in judicial practice, and there would in any case be no way of enforcing it. The Convention does not allow the court to which application is made to ask the respondent to make submissions, even in exceptional cases. Such a possibility would have meant that the proceedings were not fully ex parte. Certain courts might be inclined to hear the respondent, which would in fact result in the ex parte procedure systematically becoming inter partes. Moreover, there would be a reduction in the element of surprise which is neccessary in an enforcement procedure if the respondent is not to have the opportunity withdrawing his assets from any measure of enforcement. The rights of the respondent are safeguarded, since he can institute contentious proceedings by appealing against the decision authorizing enforcement. As has beed shown above, the application may be refused only for one of the reasons specified in Articles 27 and 28, and the foreign judgment may not reviewed as to its substance. Consequently, fresh claims which have not been submitted to the foreign court are inadmissible; the court seised of the application may authorize or refuse enforcement, but it cannot alter the foreign judgment. The court may, however, refuse the application if it does not satisfy the requirements of Articles 32 and 33. Article 35 provides that the appropriate officer of the court shall without delay bring the decision given on the application to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought. It is important that the applicant be informed of the decision taken. This demonstrates the value of an address for service or of the appointment of a representative ‘ad litem’, particularly where the applicant is domiciled abroad. The manner in which the decision is communicated to the applicant will be a matter for the national law of the State in which enforcement is sought, irrespective of whether enforcement is authorized or refused.
If enforcement is authorized, the decision must be notified to the party against whom enforcement has been granted. That party may appeal against the decision from the time it is served on him. As regards the period within which an appeal may be lodged and the moment from which it begins to run, Article 36 makes a distinction between the following situations: (a) if the party is domiciled in the State in which the decision was given, the period is one month; the moment from which time begins to run determined by the law of that State, from which there is no reason to derogate; (b) if the party is domiciled in another Contracting State, the period is two months, and runs from the date when the decision was served, either on him in person or at his residence [1]. In France and the Netherlands , the day of delivery to the prosecutor office is not counted for purposes of computation of time. In Belgium, the day of delivery to the postal authorities is not counted (Article 40 of the Judicial Code), nor is the day on which an instrument is dispatched by a Belgian Consul to a foreign authority [2]. The purpose of this rule, which derogates from some national laws, is to protect the respondent and to prevent his being deprived of a remedy because he had not been informed of the decision in sufficient time to contest it. No extension of time may be granted on account of distance, as the time allowed is sufficient to enable the party concerned to contest the decision, if he is so minded; (c) if the party is domiciled outside the Community, the period within which an appeal may be lodged runs from the date when the decision is served or is deemed to have been served according to the law of the State in which the decision was given. In this case the period of one month may be extended on account of distance in accordance with the law of that State. Computation of time is governed by the internal law of the State in which the decision was given. Article 37 specifies for each country the court with which an appeal can be lodged. In that court the proceedings are contentious. Accordingly it is incumbent upon the person against whom enforcement has been authorized to summon the other party to appear. The court seised of the appeal will have to examine whether it was properly lodged and will have to decide upon the merits of the appeal, taking account of the additional information supplied by the appellant. It will therefore be open to the appellant to establish, in the case of a judgment originally given in default of appearance, that the rights of the defendant were disregarded, or that a judgment has already been given in a dispute between the same parties in the State in which enforcement is sought which is irreconcilable with the foreign judgment. The appellant may also plead Article 38 if he has lodged an appeal against the judgment whose enforcement is sought in the State in which it was given. It is no part of the duty of the court with which the appeal against the decision authorizing enforcement is lodged to review the foreign judgment as to its substance. This would be contrary to the spirit of the Convention. The appellant could, however, effectively adduce grounds which arose after the foreign judgment was given. For example, he may establish that he has since discharged the debt. As Batiffol points out such grounds are admissible In enforcement proceedings [(3] [4]. The second paragraph of Article 37 provides that the judgment given on the appeal may be contested only by an appeal in cassation and not by any other form of appeal or review. This rule was requisite for the following reasons. First, the grounds for refusing enforcement are very limited and involve public policy . in the State in which enforcement is sought. No useful purpose is served by further argument on this concept. Next, the situation is different from that in which purely national proceedings are involved. The proceedings on the merits of the case itself have already taken place in the State in which the judgment was given, and the Convention in no way ...
... interferes with the rights of appeal. It is true that the Convention applies to judgments which are enforceable only provisionally, but in this case the court with which the appeal is lodged may, as provided in Article 38 , stay the proceedings. An excessive number of avenues of appeal might be used by the losing party purely as delaying tactics, and this would constitute an obstacle to the free movement of judgments which is the object of the Convention. Since appeals in cassation are unknown in the Federal Republic of Germany, it has been provided, in order to establish a certain parity amongst the Contracting States that an appeal on point of law (Rechtsbeschwerde) shall lie against a judgment of the Court of Appeal (Oberlandesgericht). Article 38 covers cases where an ordinary appeal has been lodged against the judgment in the State in which that judgment was given, and also cases where the period within which such an appeal may be lodged has not yet expired. The court with which the appeal against enforcement under the first paragraph of Article 37 is lodged may either stay the proceedings, authorize enforcement, make enforcement conditional on the provision of such security as it thinks fit, or specify the time within which the defendant must lodge his appeal. This provision originates in the Convention between Germany and Belgium (Article 10), and its 'object is to protect the judgment debtor against any loss which could result from the enforcement of a judgment which has not yet become res judicata and may amended' [1]. Article 38 deals only with judgments which notwithstanding that they may be appealed against, are enforceable in the State in which they were given. Only the court seised of the appeal has the power to stay the proceedings, and such a stay can be granted only on the application of the party against whom enforcement is sought. This is because that party does not appear at the first stage of the proceedings and cannot be required to do so. Article 39 contains two very important rules. First it provides that during the time specified for the lodging of an appeal the applicant for enforcement may take no enforcement measures other than protective measures namely those available under the law of the State in which enforcement is sought. Similarly, if an appeal has actually been lodged, this rule applies until the appeal has been determined. Secondly it provides that the decision authorizing enforcement carries with it the power to proceed to any such protective measures. Article 39 also allows the judgment creditor in certain States, for example in the Federal Republic of Germany, to initiate the first phase of the enforcement of the foreign instrument. The object of this provision is to ensure at the enforcement stage a balance between the rights and interests of the parties concerned, in order to avoid either of them suffering any loss as a result of the operation of the rules of procedure. On the one hand, an applicant who, in consequence of a foreign judgment, is in possession of an enforceable instrument, must be able to take quickly all measures necessary to prevent the judgment debtor from removing the assets on which execution is to be levied. This is made possible by the ex parte procedure and by the provision in Article 39 that the decision authorizing enforcement carries with it the power to proceed such protective measures. The power arises automatically. Even in those States whose law requires proof that the case calls for prompt action or that there is any risk in delay the applicant will not have to establish that either of those elements is present; power to proceed to protective measures is not a matter for the discretion of the court. On the other hand, the fact that the enforcement procedure is ex parte makes it essential that no irreversible measures of execution can be taken against the defendant. The latter may be in a position to establish that there are grounds for refusal of enforcement; he may, for example, be able to show that the question of public policy was not examined in sufficient detail. To safeguard his rights it accordingly appeared to be necessary to delay enforcement, which is usually carried out by sequestration of the movable and immovable property of the defendant, until the end of the time specified for appeal (see Article 36) or, if an appeal is actually lodged, until it has been determined. In other words, this is a counterbalance to the ex parte procedure; the effect of the decision authorizing enforcement given pursuant to Article 31 is limited in that during the time specified for an appeal, or if an appeal has been lodged, no enforcement measures can be taken on the basis of that decision against the assets of the judgment debtor.
These Articles relate to the case where an application for enforcement is refused. [Article 40] Article 40 provides that the applicant may appeal to the appeal court which has jurisdiction in the State in which enforcement is sought. The Committee did not think it necessary that the Convention should fix the period within which appeals would have to be lodged. If the applicant has had his application refused, it is for him to give notice of appeal within such time as he considers suitable. He will have regard, no doubt, to the length of time it will take him to assemble all the relevant documents. Upon appeal the proceedings are contentious, since the party against whom enforcement is sought is summoned to appear. The inter partes procedure is necessary in order to avoid numerous appeals. If the procedure on appeal had remained ex parte it would have been essential to provide for additional proceedings to enable the defendant to make his submissions if the appellate court were to reverse the decision at first instance and authorize enforcement. The Committee wished to avoid a plethora of appeals. Moreover, the dismissal of the application reverses the presumption of validity of the foreign judgment. The summoning of the party against whom enforcement is sought is to be effected in manner prescribed by the national laws. The appellate court can give judgment only if the judgment debtor has in fact been given an opportunity to make his submissions. The object of this provision is to protect the rights of the defendant and to mitigate the disadvantages which result from certain systems of serving instruments abroad. These disadvantages are all the more serious in that a party against whom enforcement is sought and who is not notified in time to arrange for his defence no longer has any judicial remedy against the judgment given on the appeal other than by way of an appeal in cassation, and then only to the extent that this is allowed by the law of the State in which enforcement is sought (Article 41). Because of the safeguards contained in Article 40 Article 41 provides that the judgment given on the appeal may not be contested by an ordinary appeal, but only by an appeal in cassation. The reason why a special form of appeal (Rechtsbeschwerde) is provided for in the Federal Republic of Germany has already been explained (Article 37). The procedure for the forms of appeal provided for in Articles 40 and 41 is to be determined by the national laws which may, where necessary, prescribe time limits. Article 42 covers two different situations. The first paragraph of Article 42 empowers the court of the State in which enforcement is sought to authorize enforcement in respect of certain matters dealt with in a judgment and to refuse it in respect of others [1]. As explained in the report annexed to the Benelux Treaty, which contains a similar provision, 'this discretion exists in all cases where a judgment deals with separate and independent heads of claim, and the decision on some of these is contrary to the public policy of the country in which enforcement is sought, while the decision on others is not.’ The second paragraph of Article 42 allows an applicant to request the partial enforcement of a judgment, and hypothesi allows the court addressed to grant such a request. As mentioned in the report on the Benelux Treaty, 'it is possible that the applicant for enforcement himself wants only partial enforcement, e. g. where the judgment whose enforcement is sought orders the payment of a sum of money, part of which has been paid since the judgment was given.' [2]. As is made clear in the Conventions between Germany and Belgium, and between Belgium and Italy, which contain similar provisions, the applicant may exercise this option whether the judgment covers one or several heads of claim. Article 43 relates to judgments which order a periodic payment by way of penalty. Some enforcement conventions contain a clause on this subject (see Benelux Treaty, Article 14; Convention between Germany and the Netherlands, Article 7).
It follows from the wording adopted that judgments given in a Contracting State which order the payment of a sum of money for each day of delay, with the intention of getting the judgment debtor to fulfil his obligations, will be enforced in another Contracting State only if the amount of the payment has been finally determined by the courts of the State in which judgment was given. Article 44 deals with legal aid. A number of enforcement conventions deal with this matter [1]. The provisions adopted by the Committee supplements the Hague Convention of 1 March 1954 on civil procedure, which has been ratified by the six States, so that a party who has been granted legal aid in the State in which judgment was given also qualifies automatically for legal aid in the State in which enforcement is sought, but only as regards the issuing of the order for enforcement. Thus the automatic extension of legal aid achieved by the Convention does not apply in relation to enforcement measures or to proceedings arising from the exercise of rights of appeal. The reasoning underlying Article 44 is as follows. First, as maintenance obligations fall within the scope of the Convention consideration was given to the humanitarian issues which were the basis for a similar provision in the 1958 Hague Convention. Above all it must not be forgotten that if a needy applicant were obliged, before making his application for enforcement, to institute in the State in which enforcement is sought proceedings for recognition of the decision granting him legal aid in the State in which the judgment was given, he would be in a less favourable position than other applicants. He would in particular not have the advantage of the rapidity of the procedure and the element of surprise which Title III is designed to afford to any party seeking the enforcement of a foreign judgment. It is moreover because of this consideration that the automatic extension of legal aid has been limited to the procedure for issuing the order for enforcement, and has not been extended to the proceedings on appeal. Once these proceedings have been set in motion, the applicant for enforcement, or, in case of appeal, the respondent, may, in accordance with the 1954 Hague Convention, take the necessary steps, in the State in which enforcement is sought, to obtain legal 'aid, in the same way as nationals of that State. Under Article 47 (2) an applicant must, on making his application, produce documents showing that he is receipt of legal aid in the State in which judgment was given. This Article deals with security for costs. A similar rule is included in the Hague Convention of 1 March 1954 but as regards the obligation to provide security it exempts only nationals of the Contracting States who are also domiciled in one of those States (Article 17). Under Article 45 , any party, irrespective of nationality or domicile, who seeks enforcement in one Contracting State of a judgment given in another Contracting State may do so without providing security. The two conditions nationality and domicile prescribed by the 1954 Convention do not apply. The Committee considered that the provision of security in relation to proceedings for the issuing of an order for enforcement was unnecessary. As regards the proceedings which take place in the State in which judgment was given, the Committee did not consider it necessary to depart from the rules of the 1954 Convention. This Section deals with the documents which must be produced when application is made for the recognition or enforcement of a judgment. Article 46 applies to both recognition and enforcement. Article 47 applies only to applications for enforcement. It should be noted that at the recognition stage there is no reason to require production of the documents referred to in Article 47.
Article 47 (1) provides for the production of documents which establish that the judgment is enforceable in the State in which it was given. The requirement that the judgment be, in law, enforceable in that State applies only in relation to its enforcement (not to its recognition) abroad. (Article 31). Article 47 (2), which relates to documents showing that the applicant is receiving legal aid in the State in which judgment was given is also relevant only enforcement proceedings. The documents are in fact intended to enable a party receiving legal aid in the State in which judgment was given to qualify for it automatically in the proceedings relating to the issue of the order for enforcement (Article 44). However recognition requires no special procedure (Article 26). If recognition were itself the principal issue in an action Article 44 and, consequently, Article 47 (2) would apply, since Article 26 refers to Sections 2 and 3 Title III. Under Article 46 (1), a copy of the judgment which satisfies the conditions necessary to establish its authenticity must be produced, whether it is recognition or enforcement which is sought. This provision is found in all enforcement treaties and does not require any special comment. The authenticity of a judgment will be established in accordance with the maxim locus regit actum; it is therefore the law of the place where the judgment was given which prescribes the conditions which the copy of the judgment must satisfy in order to be valid [1]. Under Article 46 (2), if the judgment was given in default, a document which establishes that the party in default was served with the document instituting the proceedings must also be produced. The court in which recognition or enforcement is sought must, if the foreign judgment was given in default, be in a position to verify that the defendant s right to defend himself was safeguarded. Article 47 provides that the following documents must be produced:(a) documents which establish that the judgment is enforceable according to the law of the State in which it was given. This does not mean that a separate document certifying that the judgment has become enforceable in that State is necessarily required. Thus in France, 'provisional enforceability' would be deduced from an express reference to it in judgments given pursuant to Article 135a of the Code of Civil Procedure. Decisions given in summary proceedings will be provisionally enforceable (Article 809 of the Code of Civil Procedure); and so will decisions in ex parte proceedings (Article 54 of the Decree of 30 March 1808). But whether other judgments are enforceable can be determined only when the date on which they were given has been considered in relation to the date on which they were served and the time allowed for lodging an appeal [2]. Documents which establish that the judgment has been served will also have to be produced, since some judgments may be enforceable and consequently fall within the scope of the Convention even if they have not been served on the other party. However, before enforcement can be applied for, that party must at least have been informed of the judgment given against him and also have had the opportunity to satisfy the judgment voluntarily; (b) where appropriate, a document showing, in accordance with the law of the State in which the judgment was given, that the applicant is in receipt of legal aid in that State. In order to avoid unnecessary formalities, this Article authorizes the court to allow time for the applicant to produce the documentary evidence proving service of the document instituting the proceedings, required under Article 46 (2), and the documentary evidence showing that the applicant was in receipt of legal aid in the State in which judgment was given (Article 47 (2)).
The court may dispense with the production of these documents by the applicant (the Committee had in mind the case where the documents had been destroyed) if it considers that it has sufficient information before it from other evidence. The second paragraph relates to the translation of the documents to be produced. Again with the object of simplifying the procedure, it is here provided that the translation may be certified by a person qualified ' to so in anyone of the Contracting States. This Article provides that legalization or other like formality is not necessary as regards the documents to be produced and, in particular, that the certificate provided for in the Hague Convention of 5 October 1961 abolishing the requirement of legalization for foreign public documents is not required. The same applies to the document whereby an applicant appoints a representative, perhaps a lawyer, to act for him in proceedings for the issue of an order for enforcement.
In drawing up rules for the enforcement of authentic instruments, the Committee has broken no new ground. Similar provisions are, in fact, contained in the Conventions already concluded by the six States [1], with the sole exception of the Convention between Germany and Italy. Since Article 1 governs the whole Convention, Article 50 applies only to authentic instruments which have been drawn up or registered in matters falling within the scope of the Convention. In order that an authentic instrument which has been drawn up or registered in one Contracting State may be the subject of an order for enforcement issued in another Contracting State, three conditions must be satisfied:
The provisions of Section 3 of Title III are applicable as appropriate. It follows in particular that no legalization or similar formality is required. A provision covering court settlements was considered necessary on account of the German and Netherlands legal systems [2], under German and Netherlands law settlements approved by a court in the course of proceedings are enforceable without further formality (Article 794 (1) of the German Code of Civil Procedure and Article 19 of the Netherlands Code of Civil Procedure). The Convention, like the Convention between Germany and Belgium, makes court settlements subject to the same rules as authentic instruments, since both are contractual in nature. Enforcement can therefore be refused only if it is contrary to public policy in the State in which it is sought.
end of page: Official Journal of the European Communities No C 59/56 (05-03-1979)
As regards the determination of domicile (Article 52), reference should be made to Chapter IV (A) (3) which deals with the matter. Article 53 provides that, for the purposes of this Convention, the seat of a company or other legal person or association of natural or legal persons shall be treated as its domicile. The Convention does not define what is meant by the seat of a legal person or of a company or association of natural or legal persons any more than it defines domicile. In determining the location of the seat, the court will apply its rules of private international law. The Committee did not think it possible to particularize the concept of seat in any other way, and considered that it could not be achieved by making a reference to Article 52, in view of the different approaches which the various Member States of the Community adopt in this matter. Moreover, the Committee did not wish encroach upon the work on company law which is now being carried out within the Community. It did not excape the attention of the Committee that the application of Article 16 (2) of the Convention could raise certain difficulties. This would be the case for example, where a court in one State ordered the dissolution of a company whose seat was in that State and application was then made for recognition of that order in another State under whose law the location of the company s seat was determined by its statutes, if when so determined, it was in that other State. In the opinion of the Committee, the court of the State in which recognition were sought would be entitled, under the first paragraph of Article 28 , to refuse recognition on the ground that the courts of that State had exclusive jurisdiction. Article 53 does not deal with the preliminary question of the recognition of companies or other legal persons or associations of natural or legal persons; this must be resolved either by national law or by the Hague Convention of 1 June 1956 on the red~gnition of the legal personality of companies, firms, associations and foundations [l], pending the entry into force of the Convention which is at present being prepared within the EEC on the basis of Article 220 of the Treaty of Rome. Article 53 refers to companies or other legal persons and to associations of natural or legal persons; to speak only of legal persons would have been insufficient, since this expression would not have covered certain types of company, such as the ' offene Handelsgesellschaft' under German law, which are not legal persons. Similarly, it would not have been sufficient to speak only of companies, since certain bodies, such as associations and foundations, would then not have been covered by this Convention.
As a general rule, enforcement treaties have no retroactive effect [1], in order 'not to alter a state of affairs which has been reached on the basis of legal relations other than those created between the two States as ' a result of the introduction of the Convention' [2]. So far as the author is aware only the Benelux Treaty applies to judgments given before its entry into force.
A solution as radical as that of the Benelux Treaty did not seem acceptable. In the first place, the conditions which a judgment must fulfil in order to be recognized and enforced are much stricter under the Benelux Treaty (Article 13) than under the EEC Convention. Secondly, the ease with which recognition and enforcement can be granted under the EEC Convention is balanced by the provisions of Title II which safeguard the interests of the defendant. In particular, those provisions have made it possible, at the stage of recognition or enforcement, to dispense with any review of the jurisdiction of the court of origin (Article 28). But, of course, a defendant in the State in which judgment was originally given will be able to rely on these protective provisions only when the Convention has entered into force. Only then will he be able to invoke the Convention to plead lack of jurisdiction. Although Article 54 was not modelled on the Benelux Treaty, its effect is not very different. The rules adopted are as follows: In this case, the court of the State addressed may review the jurisdiction of the court of origin, since the defendant originally had no opportunity to contest that jurisdiction in that court on the basis of the Convention. Enforcement will be authorized if the jurisdiction of the court of origin: (i) either was based on a rule which accords with one of the rules of jurisdiction in the Convention; for example, if the defendant was domiciled in the State in which the judgment was given; (ii) or was based on a multilateral or bilateral convention in force between the State of origin and the State addressed. Thus if, for example, an action relating to a contract were brought in a German court, the judgment given could be recognized and enforced in Belgium if the obligation had been was to be performed in the Federal Republic since the jurisdiction of the German court would founded on Article 3 (1) (5) of the Convention between Germany and Belgium. If the jurisdiction of the court of origin is founded on one of those bases, the judgment must be recognized and enforced, provided of course that there is no ground for refusal under Article 27 or 28,. Recognition will be accorded without any special procedure being required (Article 26); enforcement will be authorized in accordance with the rules of Section 2 of Title III, that is to say, on ex parte application. It follows from Article 54, which provides that the Convention applies only to legal proceedings instituted after its entry into force, that the Convention will have no effect on proceedings in progress at the time of its entry into force. If, for example, before the entry into force of the Convention, proceedings were instituted in France in accordance with Article 14 of the Civil Code against a person domiciled in another Contracting State that person could not plead the Convention for the purpose of contesting the jurisdiction of the French court.
Title VII deals with the relationship between the Convention and other international instruments governing jurisdiction, recognition and the enforcement of judgments. It covers the following matters:
1. the relationship between the Convention and the bilateral agreements already in force between certain Member States of the Community (Article 55 and 56) [1]; 2. the relationship between the Convention and those international agreements which, in relation to particlar matters, govern or will govern jurisdiction and the recognition or enforcement of judgments (Article 57); 3. the relationship between the Convention and the Convention of 15 June 1869 between France and Switzerland which is the only enforcement convention concluded between a Member State of the EEC and a non-member State to contain rules of direct jurisdiction (Article 58); 4. the relationship between the Convention and any other instruments, whether bilateral or multilateral which may in the future govern the recognition and enforcement of judgments (Article 59). It was not thought necessary to regulate the relationship between the Convention and the bilateral conventions already concluded between Member States of the EEC and non-member States since, with the exception of the Convention between France and Switzerland, such conventions all contain rules of indirect jurisdiction. There is, therefore, no conflict between those conventions and the rules of jurisdiction laid down in Title II of the Convention. Recognition and enforcement would seem to raise no problem, since judgments given in those non-member States must be recognized in accordance' with the provisions of the bilateral conventions. Article 55 contains a list of the Conventions which will be superseded on the entry into force of the EEC Convention. This will, however, be subject to: 1. the provisions of the second paragraph of Article 54, as explained in the commentary on that Article; 2. the provisions of the first paragraph of Article 56 the consequence of which is that these conventions will continue to have effect in relation to matters to which the EEC Convention does not apply (status legal capacity etc. 3. the provisions of the second paragraph of Article 56 concerning the recognition and enforcement of judgments given before the EEC Convention enters into force. Thus a judgment given in France before the EEC Convention enters into force and to which by virtue of Article 54 this Convention would therefore not apply, could be recognized and enforced in Italy after the entry into force of the EEC Convention under the terms of the Convention of 3 June 1930 between France and Italy. Without such a rule, judgments given before the Convention enters into force could be recognized and enforced only in accordance with the general law, and this would in several Contracting States involve the possibility of a review of the substance of the judgment, which would unquestionably be retrograde step. The Member States of the Community, or some of them, are already parties to numerous international agreements which, in relation to particular matters govern jurisdiction or the recognition or enforcement of judgments. Those agreements include the following:
The structure of these agreements varies considerably. Some of them govern only jurisdiction, like the Warsaw Convention of 12 October 1929 for the unification certain rules relating to international carriage by air, or are based on indirect jurisdiction, like the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations in respect of children, or contain rules of direct or even exclusive jurisdiction such as the International Convention of 25 October 1952 concerning the carriage of goods by rail (CIM), which lays down in Article 43 (5) that actions arising from the contract of carriage may be brought only in the courts of the State to which the defendant railway belongs. The approach adopted by the Committee means that agreements relating to particular matters prevail over the Convention. It follows that, where those agreements lay down rules of direct or exclusive jurisdiction, the court of the State of origin will have to apply those rules to the exclusion of any others; where they contain provisions concerning the conditions governing the recognition and enforcement of judgments given in matters to which the agreements apply, only those conditions need be satisfied, so that the enforcement procedure set up by the EEC Convention will not apply to those judgments. The Committee adopted this approach in view of the fact that the Member States of the Community, when they entered into these agreements, had for the most part contracted obligations towards non-Member States which should not be modified without the consent of those States.
1. The rules of jurisdiction laid down in these agreements have been dictated by particular considerations relating to the matters of which they treat, e. g. the flag or port of registration of a vessel in the maritime conventions; the criterion of domicile is not often used to establish jurisdiction in such agreements. 2. The EEC Convention lays down that judgments are in principle to be recognized, whereas agreements relating to particular matters usually subject the recognition and enforcement of judgments to a certain number of conditions. These conditions may well differ from the grounds for refusal set out in Articles 27 and 28; moreover they usually include a ...
end of page: Official Journal of the European Communities No C 59/60 (05-03-1979) ... requirement, which the Convention has dropped that the court of origin had jurisdiction. 3. The simplified enforcement procedure laid down by the Convention is the counterpart of Title II, the provisions of which will not necessarily have to be observed where the court of the State of origin has to apply another convention. Consequently, where agreements relating to particular matters refer for the enforcement procedure back to the ordinary law of the State in which enforcement is sought, it is that law which must be applied. There is, however nothing to prevent a national legislature from substituting the Convention procedure for its ordinary civil procedure for the enforcement of judgments given in application of agreements governing particular matters. This Article deals only with certain problems of jurisdiction raised by the Convention of 15 June 1869 between France and Switzerland. Under Article 1 of that Convention, a Swiss national domiciled in France may sue in the French courts a French national domiciled in a third State. This option, granted by that Convention to Swiss nationals domiciled in France, might, in the absence of Article 58 , conflict with the EEC Convention, according to which a defendant domiciled in a Contracting State may be sued in the courts of another Contracting State only in certain defined situations, and in any case not on the basis of rules of exorbitant jurisdiction such as those of Article 14 of the French Civil Code. Under Article 58 , a Swiss national domiciled in France can exercise the option which the Convention between France and Switzerland grants him to sue in France a Frenchman domiciled in another Contracting State without there being any conflict with the EEC Convention, since the jurisdiction of the French Court will be recognized under the terms of Article 58. As a result of this provision, the rights secured by Swiss nationals domiciled in France are safeguarded, and France can continue to honour the obligations which it has entered into with respect to Switzerland. This is, of course, only an option which is granted to Swiss nationals, and there is nothing to prevent them from making use of the other provisions of the EEC Convention. It will be recalled that under Article 3 of the Convention, what are known as the rules of 'exorbitant jurisdiction are no longer to be applied in cases where the defendant is domiciled in the Community, but that under Article 4 they are still fully applicable where the defendant is domiciled outside the Community, and that, in such cases, judgments given by a court whose jurisdiction derives from those rules are to recognized and enforced in the other Contracting States. It must first be stressed that Article 59 does not reduce the effect of Article 4 of the Convention, for the latter Article does not prevent a State, in an agreement with a third State, from renouncing its rules of exorbitant jurisdiction either in whole or only in certain cases, for example, if the defendant is a national of that third State or if he is domiciled in that State. Each State party to the EEC Convention remains quite free to conclude agreements of this type with third States, just as it is free to amend the provisions of its legislation which contain rules of exorbitant jurisdiction; Article 4 of the Convention imposes no common rule, but merely refers back to the internal law of each State. The only objective of Article 59 is to lessen the effects within the Community, of judgments given on the basis of rules of exorbitant jurisdiction. Under the combined effect of Articles 59 and 28 , recognition or enforcement of a judgment given in a State party to the Convention can be refused in any other Contracting State: 1. where the jurisdiction of the court of origin could only be based on one of the rules of exorbitant jurisdiction specified in the second paragraph of Article 3. It would therefore be no ground for refusal that the court of origin founded its jurisdiction on one of those rules, if it could equally well have founded its jurisdiction on other provisions of its law. For example, a judgment given in France on the basis of Article 14 of the Civil Code could be recognized and enforced if the litigation related to a contract which was to be performed in France;
2. where a convention on the recognition and enforcement of judgments exists between the State addressed and a third State, under the terms of which judgments given in any other State on the basis of a rule of exorbitant jurisdiction will be neither recognized nor enforced where the defendant was domiciled or habitually resident in the third State. Belgium would thus not be obliged to recognize or enforce a judgment given in France against a person domiciled or habitually resident in Norway where the jurisdiction of the French courts over that person could be based only on Article 14 of the Civil Code since a convention between Belgium and Norway exists under which those two countries undertook not to recognize or enforce such judgments. Article 59 includes a reference not only to the defendant's domicile but also to his habitual residence, since in many non-member States this criterion is in practice equivalent to the concept of domicile as this is understood in the Member States of the Community (see also Article 10 (1)) of the Hague Convention on the recognition , and enforcement of foreign judgments in civil and commercial matters). As regards the recognition and enforcement of judgments. Article 59 thus opens the way towards regulating the relations between the Member States of the EEC and other States, in particular the increasing number which are members of the Hague Conference. This seemed to justify a slight encroachment on the principle of free movement of judgments.
These Articles give rise to no particular comment. Article 63 deals with the accession of new Member States to the European Economic Community. It is desirable, in the opinion of the Committee, that, in order to be able to fulfil the obligations laid down in Article 220 of the Treaty establishing the European Economic Community, such States should accede to the Convention. The legal systems of such States might however, prevent the acceptance of the Convention as it stands, and negotiations might be necessary. If such were the case, any agreement concluded between the Six and a new Member State should not depart from the basic principles of the Convention. That is why Article 63 provides that the Convention must be taken as a basis for the negotiations, which should be concerned only with such adjustments as are essential for the new Member State to be able to accede to the Convention. The negotiations with that State would not necessarily have to precede its admission to the Community. Since the adjustments would be the subject of a special agreement between the Six and the new Member State, it follows from the second paragraph of Article 63 that these negotiations could not be used as an opportunity for the Six to reopen debate on the Convention. Article I of the Protocol takes account of the special position of the Grand Duchy of Luxembourg. It provides that any person domiciled in Luxembourg who is sued in a court of another Contracting State pursuant to Article 5 (1) (which provides, in matters relating to a contract, that the courts for the place of performance of
the obligation shall have jurisdiction), may refuse the jurisdiction of those courts. A similar reservation is included in the Benelux Treaty (Protocol, Article I), and it is justified by the particular nature of the economic relations between Belgium and Luxembourg, in consequence of which the greater part of the contractual obligations between persons resident in the two countries are performed or are to be performed Belgium. It follows from Article 5 (1) that a plaintiff domiciled in Belgium could in most cases bring an action in the Belgian courts. Another characteristic of Luxembourg economic relations is that a large number of the contracts concluded by persons resident in Luxembourg are international contracts. In view of this, it was clearly necessary that agreements conferring jurisdiction which could be invoked against persons domiciled in Luxembourg should be subject to stricter conditions than those of Article 17. The text adopted is based on that of the Benelux Treaty (Article 5 (3)). Article II of the Protocol also has its origin in the Benelux Treaty. The latter applies inter alia judgments given in civil matters by criminal courts, and thus puts an end to a controversy between Belgium and the Netherlands on the interpretation of the 1925 Convention between Belgium and the Netherlands. As the report annexed to the Treaty explains [1], the reluctance of the Netherlands authorities to enforce judgments given by foreign criminal courts in civil claims is due to the fact that a Netherlander charged with a punishable offence committed in foreign country may be obliged to appear in person before the foreign criminal court in order to defend himself even in relation to the civil claim, although the Netherlands does not extradite its nationals. This objection is less pertinent than would appear at first sight under certain systems of law, and in particular in France, Belgium and Luxembourg, the judgment in a criminal case has the force of res judicata in any subsequent civil action. In view of this, the subsequent civil action brought against a Netherlander convicted of a criminal offence will inevitably go against him. It is therefore essential that he should be able to conduct his defence' during the criminal stage of the proceedings. For this reason the Convention, like the Benelux Treaty, provides (see the Protocol) that a person domiciled in a Contracting State may arrange for his defence in the criminal courts of any other Contracting State. Under Article II of the Protocol, that person will enjoy this right even if he does not appear in person and even if the code of criminal procedure of the State in question does not allow him to be represented. However, if the court seised of the matter should specifically order appearance in person, the judgment given without the person concerned having had the opportunity to arrange for his defence, because he did not appear in person, need not be recognized or enforced in the other Contracting States. This right is, however, accorded by Article II of the Protocol only to persons who are prosecuted for an offence which was not intentionally committed; this includes road accidents. This Article is also based on the Benelux Treaty (Article III of the Protocol). It abolishes the levying, in the State in which enforcement is sought, of any charge, duty or fee which is calculated by reference to the value of the matter in issue, and seeks to remedy the distortion resulting from the fact that enforcement gives rise to the levying of fixed fees in certain countries and proportional fees in others. This Article is not concerned with lawyers' fees. In the opinion of the Committee, while it was desirable to abolish proportional fees on enforcement, there was no reason to suppress the fixed charges, duties and fees which are payable, even under the internal laws of the Contracting States, whenever certain procedural acts are performed, and which in some respects can be regarded as fees charged for services rendered to the parties.
(See the commentary on Article 6 (2), page 27 et seq. This Article relates to the case where legislative amendments to national laws affect either the provisions of the laws mentioned in the Convention as might happen in the case of the provisions specified in the second paragraph of Article 3 or affect the courts listed in Section 2 of Title III. Information on these matters must be passed to the Secretary General of the Council of the European Communities to enable him, in accordance with Article 64 (e), to flotify the other Contracting States.
end of page: Official Journal of the European Communities No C 59/64 (05-03-1979)
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