62002O0069

Convention on Jurisdiction and the Enforcement of Judgments - Protocol on the interpretation by the Court of Justice of the Convention - National courts which may request the Court to give a preliminary ruling - Luxembourg Tribunal de paix acting at first instance - Excluded - Court clearly lacking jurisdiction to give a preliminary ruling on the questions referred to it

(Protocol of 3 June 1971, Art. 2)

In Case C-69/02,

REFERENCE to the Court by the Tribunal de paix de Luxembourg (Luxembourg) for a preliminary ruling in the proceedings pending before that court between

Tilly Reichling

and

Léon Wampach,

third party:

Établissement d'assurances contre la vieillesse et l'invalidité,

on the interpretation of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and - amended text - p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1),

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, M. Wathelet and A. Rosas (Rapporteur), Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By judgment of 28 February 2002, received at the Court on 1 March 2002, the Tribunal de paix de Luxembourg (Magistrates' Court, Luxembourg) referred three questions to the Court for a preliminary ruling on the interpretation of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and - amended text - p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1), respectively the Convention and the Accession Conventions.

2 Those questions were raised in the course of proceedings for the validation of an attachment order between Ms Reichling, the judgment creditor, and Mr Wampach, the judgment debtor, with Établissement d'assurances contre la vieillesse et l'invalidité as third party.

The dispute in the main proceedings and the questions referred for a preliminary ruling

3 Following the grant of an authorisation order by the Juge de paix, Luxembourg, on 15 June 2001, Ms Reichling served an attachment order made against Mr Wampach on Établissement d'assurances contre la vieillesse et l'invalidité for arrears of maintenance due pursuant to two judicial decisions given on 12 January 1994 and 30 June 1999 by the Cour d'appel (Court of Appeal), making an interim order and giving a ruling respectively on the substance of a divorce.

4 In the course of proceedings for the validation of the attachment order, required by Luxembourg procedural law, Mr Wampach argued that maintenance payments were no longer due as from June 2001.

5 Treating the defence as a cross-petition for the termination of maintenance payments, and having regard to the fact that Ms Reichling is domiciled in France, the Tribunal de paix de Luxembourg held it necessary to refer the following questions to the Court of Justice for a preliminary ruling:

1. Must Article 6(3) of the Brussels Convention be interpreted as meaning that an action for enforcement of a judicial decision, necessarily involving in accordance with procedural rules under domestic law the intervention of a court of law, may be regarded as an original claim based on a contract or on facts? May an original claim based on the enforcement of a judgment declaring and fixing entitlement to maintenance be considered to be based on a contract or facts within the meaning of Article 6(3)? May an original claim seeking enforcement of an entitlement to maintenance be considered to be based on a contract or facts within the meaning of Article 6(3)?

2. Must the expression arising from the same contract or facts on which the original claim was based in Article 6(3) of the Brussels Convention be considered to be more restrictive than the expression related actions used in the third paragraph of Article 22 of the Brussels Convention?

3. Where the court which is to hear and determine the original claim has jurisdiction under Article 16(5) of the Brussels Convention without that original claim requiring that court to adjudicate on the substance of the relationship between the parties to the dispute, does Article 6(3) of the Brussels Convention make it possible for a defendant to bring before that court a counter-claim concerning the legal substance, whereas if it had submitted that claim by way of an independent action it would have fallen, under the terms of the Brussels Convention, within the jurisdiction of the courts of another Contracting State?

Jurisdiction of the Court

6 Under Article 92(1) of the Rules of Procedure, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible, the Court of Justice may, by reasoned order, after hearing the Advocate General and without taking further steps in the proceedings, give a decision on the action.

7 The Court's jurisdiction to interpret the Convention is defined by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention (OJ 1975 L 204, p. 28) as amended by the Accession Conventions (the Protocol).

8 The Protocol reserves to certain courts, referred to in Article 2, the power to request the Court of Justice to give preliminary rulings on questions of interpretation of the Convention, so that it is appropriate, in that regard, to examine whether the Court of Justice has jurisdiction to answer the questions which have been referred.

9 Article 2(1) and (3) of the Protocol set out expressly and exhaustively - the first directly, the second by reference to Article 37 of the Convention - the courts which may make references to the Court. Article 2(2) adds that the courts of the Contracting States sitting in an appellate capacity may also do so.

10 Luxembourg Tribunaux de paix are not mentioned either in Article 2(1) of the Protocol or in Article 37 of the Convention. Furthermore, it is clear from Article 2 of the new Luxembourg Civil Procedure Code in conjunction with Article 9 of the Luxembourg Law of 11 November 1970 on assignment and attachment of salaries, pensions and investment income that, when the Tribunal de paix rules on the validity of an attachment order for a sum exceeding the limit of its jurisdiction of last resort, its decision is subject to appeal. In the present case, it follows both from the subject-matter of the main proceedings, as set out by the national court, and from further details in that regard given by the judgment referring questions to the Court, that the Tribunal de paix is sitting as a court of first instance.

11 It follows that, in the main proceedings, the Tribunal de paix de Luxembourg may not request the Court to give a preliminary ruling on the interpretation of the Convention.

12 In those circumstances, Article 92(1) of the Rules of Procedure must be applied and it must be held that the Court clearly has no jurisdiction to rule on the questions put by the Tribunal de paix de Luxembourg.

Costs

13 Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber)

hereby orders:

The Court of Justice of the European Communities clearly has no jurisdiction to answer the questions put by the Tribunal de paix de Luxembourg in its judgment of 28 February 2002.