61983O0080

CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS - PROTOCOL ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION - NATIONAL COURTS WHICH MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING - COURTS SITTING ' ' IN AN APPELLATE CAPACITY ' ' - CONCEPT - ITALIAN COURT SITTING IN PROCEEDINGS AT FIRST INSTANCE BROUGHT AGAINST A PAYMENT ORDER MADE UNDER A SUMMARY PROCEDURE - EXCLUSION

( PROTOCOL OF 3 JUNE 1971 , ART . 2 ( 2 ))

IN CASE 80/83

REFERENCE TO THE COURT BY ORDER OF THE PRESIDENT OF THE TRIBUNALE DI VARESE ( DISTRICT COURT , VARESE ) OF 23 APRIL 1983 FOR A PRELIMINARY RULING IN THE JOINED PROCEEDINGS

HABOURDIN INTERNATIONAL SA , PARIS ,

AND

BANQUE NATIONALE DE PARIS , PARIS AND MILAN ,

V

SPA ITALOCREMONA,VARESE-GAZZADA ,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ,

BY ORDER OF 23 APRIL 1983 , RECEIVED AT THE COURT ON 6 MAY 1983 , THE PRESIDENT OF THE TRIBUNALE DI VARESE , PURSUANT TO THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( HEREINAFTER REFERRED TO AS ' ' THE BRUSSELS CONVENTION ' ' ) SUBMITTED A QUESTION FOR A PRELIMINARY RULING ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THAT CONVENTION .

THAT PROTOCOL PROVIDES THAT ONLY CERTAIN COURTS , REFERRED TO IN ARTICLE 2 THEREOF , MAY REQUEST THE COURT OF JUSTICE TO GIVE PRELIMINARY RULINGS ON THE INTERPRETATION OF THE BRUSSELS CONVENTION , SO THAT , IN THIS INSTANCE , IT IS NECESSARY TO CONSIDER WHETHER THE COURT OF JUSTICE HAS JURISDICTION TO REPLY TO THE QUESTION SUBMITTED TO IT .

INDENTS 1 AND 3 OF THE ABOVE-MENTIONED ARTICLE 2 - THE FIRST DIRECTLY AND THE SECOND BY REFERENCE TO ARTICLE 37 OF THE BRUSSELS CONVENTION - LIST , EXPRESSLY AND EXHAUSTIVELY , THE COURTS WHICH MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING . ARTICLE 2 ( 2 ) STATES IN ADDITION THAT ' ' THE COURTS OF THE CONTRACTING STATES WHEN THEY ARE SITTING IN AN APPELLATE CAPACITY ' ' MAY ALSO REQUEST PRELIMINARY RULINGS .

ARTICLE 3 OF THE PROTOCOL PROVIDES THAT :

' ' 1 . WHERE A QUESTION OF INTERPRETATION OF THE CONVENTION OR OF ONE OF THE OTHER INSTRUMENTS REFERRED TO IN ARTICLE 1 IS RAISED IN A CASE PENDING BEFORE ONE OF THE COURTS LISTED IN ARTICLE 2 ( 1 ), THAT COURT SHALL , IF IT CONSIDERS THAT A DECISION ON THE QUESTION IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT , REQUEST THE COURT OF JUSTICE TO GIVE A RULING THEREON .

2.WHERE SUCH A QUESTION IS RAISED BEFORE ANY COURT REFERRED TO IN ARTICLE 2 ( 2 ) OR ( 3 ), THAT COURT MAY , UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH 1 , REQUEST THE COURT OF JUSTICE TO GIVE A RULING THEREON . ' '

SINCE THE ITALIAN TRIBUNALI ( DISTRICT COURTS ) ARE NOT REFERRED TO EITHER IN ARTICLE 2 ( 1 ) OF THE PROTOCOL OR IN ARTICLE 37 OF THE BRUSSELS CONVENTION , THEY MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING ON A QUESTION OF INTERPRETATION ONLY WHEN THEY ARE ' ' SITTING IN AN APPELLATE CAPACITY ' ' .

IT IS APPARENT FROM THE PAPERS IN THE CASE THAT THE ORDER REQUESTING A PRELIMINARY RULING WAS MADE IN THE COURSE OF PROCEEDINGS AT FIRST INSTANCE ON AN ACTION BROUGHT PURSUANT TO ARTICLE 645 OF THE ITALIAN CODE OF CIVIL PROCEDURE AGAINST A PAYMENT ORDER MADE UNDER THE SUMMARY PROCEDURE PROVIDED FOR IN ARTICLES 633 ET SEQ . OF THE CODE OF CIVIL PROCEDURE . IT MUST THEREFORE BE STATED THAT THE ORDER OF THE NATIONAL COURT WAS NOT MADE IN THE CIRCUMSTANCES PROVIDED FOR IN ARTICLE 2 ( 2 ) OF THE PROTOCOL ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 .

CONSEQUENTLY , IT IS CLEAR THAT THE COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF THE REFERENCE FOR A PRELIMINARY RULING WHICH MUST THEREFORE BE DECLARED INADMISSIBLE WITHIN THE MEANING OF ARTICLE 92 ( 1 ) TOGETHER WITH ARTICLE 103 ( 2 ) OF THE RULES OF PROCEDURE .

ON THOSE GROUNDS ,

THE COURT

HEREBY ORDERS AS FOLLOWS :

THE REQUEST FOR A PRELIMINARY RULING MADE BY THE PRESIDENT OF THE TRIBUNALE DI VARESE BY ORDER OF 23 APRIL 1983 IS INADMISSIBLE .