61962S0004

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1 . PRIVILEGES AND IMMUNITIES OF THE ECSC - MEASURES OF CONSTRAINT - DETERMINATION BY THE COURT - SCOPE OF ITS EXAMINATION

( ARTICLE 1, P.P.I . OF THE ECSC )

2 . PRIVILEGES AND IMMUNITIES OF THE ECSC - MEASURES OF CONSTRAINT - DETERMINATION ACCORDING TO NATIONAL LAW - GARNISHEE ORDER UNDER LUXEMBOURG LAW - CONSTRAINT WITHIN THE MEANING OF ARTICLE 1, P.P.I . OF THE ECSC

1 . WHERE AN AUTHORITY OTHER THAN ONE OF THE INSTITUTIONS OF THE COMMUNITY ORDERS THE ENFORCEMENT AGAINST THE COMMUNITY OF A DECISION WHICH ALTERS ITS LEGAL POSITION, IT IS FOR THE COURT, AS GUARDIAN OF THE IMPERATIVE INTERESTS OF THE COMMUNITY, TO ASCERTAIN WHETHER THE APPLICATION OF THE NATIONAL LEGAL PROVISIONS UPON WHICH THE DECISION AT ISSUE IS BASED CONSTITUTES A CONSTRAINT WITHIN THE MEANING OF ARTICLE 1 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL COMMUNITY .

2 . A GARNISHEE ORDER ISSUING FROM A LUXEMBOURG COURT AND AFFECTING THE PROPERTY AND ASSETS OF THE COMMUNITY IS TO BE CONSIDERED A CONSTRAINT WITHIN THE MEANING OF ARTICLE 1 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL COMMUNITY, SINCE GARNISHEE PROCEEDINGS CONSTITUTE A SINGLE LEGAL REMEDY, ALTHOUGH UNDER LUXEMBOURG LAW THIS CONSISTS OF TWO STAGES, EACH OF WHICH ALTERS THE LEGAL POSITION OF THE GARNISHEE . THE AUTHORIZATION OF THE COURT IS THEREFORE NECESSARY IN THIS CASE .

IN CASE 4/62

APPLICATION FOR AUTHORIZATION TO ENFORCE A GARNISHEE ORDER AGAINST THE HIGH AUTHORITY,

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WHEREAS, BY AN ORDER DATED 8 FEBRUARY 1962, THE PRESIDENT OF THE TRIBUNAL D'ARRONDISSEMENT DE LUXEMBOURG, ON AN APPLICATION BY ROLF HUBNER, ENGINEER, OF GABELSBERGERSTRASSE 31, DORTMUND ( GERMANY ), AND HIS WIFE, EVA HUBNER, NEE GERKEN, COMPANY DIRECTOR, RESIDING WITH HER HUSBAND AT THE ABOVE ADDRESS, ASSISTED AND AUTHORIZED BY HIM AS NECESSARY, BOTH BEING REPRESENTED BY ERNEST ARENDT, AVOCAT-AVOUE OF LUXEMBOURG, AUTHORIZED THEM TO GARNISHEE, AS BETWEEN THE HIGH AUTHORITY AND MANFRED KUHBIER, BUSINESSMAN, RESIDING AT KLINGHOLZBERG 13, WUPPERTAL-BARMEN, ALL MONIES, SECURITIES OR FUNDS WHICH THE SAID HIGH AUTHORITY OWES, SHALL BE JUDGED TO OWE OR ADMIT TO OWING BY HIM TO THE APPLICANTS, UP TO A TOTAL OF 60 000 DM;

WHEREAS THIS ORDER WAS DECLARED IMMEDIATELY ENFORCEABLE BEFORE REGISTRATION;

WHEREAS, BY APPLICATION OF 21 FEBRUARY 1962, THE ABOVE-MENTIONED APPLICANTS REQUESTED THE COURT TO AUTHORIZE ENFORCEMENT AGAINST THE HIGH AUTHORITY OF THE GARNISHEE ORDER GRANTED BY THE LUXEMBOURG COURT, IN ACCORDANCE WITH ARTICLE 1 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL COMMUNITY, WHICH PROVIDES THAT THE PROPERTY AND ASSETS OF THE COMMUNITY SHALL NOT BE THE SUBJECT OF ANY ADMINISTRATIVE OR LEGAL MEASURE OF CONSTRAINT WITHOUT THE AUTHORIZATION OF THE COURT;

WHEREAS THE HIGH AUTHORITY ADMITS TO OWING TO THE SAID MANFRED KUHBIER THE CLEAR SUM OF 10 000 EMA UNITS OF ACCOUNT, BEING DUE FOR IMMEDIATE PAYMENT IN FULL;

WHEREAS IT IS APPROPRIATE FOR THE COURT TO ENQUIRE INTO THE OBJECT OF ARTICLE 1 OF THE ABOVE PROTOCOL, IN ORDER TO ASCERTAIN ITS SCOPE AND TO DECIDE AS TO ITS APPLICATION IN THIS CASE;

WHEREAS THE TREATY, WHILST ALLOWING NATIONAL COURTS OR ADMINISTRATIVE AUTHORITES TO SETTLE CERTAIN DISPUTES CONCERNING THE COMMUNITY'S ACTIVITIES, REQUIRES NEVERTHELESS THAT ENFORCEMENT OF DECISIONS IN SUCH CASES BY MEASURES OF CONSTRAINT BE SUBJECT TO THE AUTHORIZATION OF THE COURT OF JUSTICE, IN ORDER TO AVOID UNTIMELY AND INAPPROPRIATE HINDRANCES TO THE INDEPENDENT FUNCTIONING OF THE COMMUNITY ON BEHALF OF PRIVATE INTERESTS;

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WHEREAS THIS PROTECTIVE POWER OF THE COURT OVER THE IMPERATIVE INTERESTS OF THE COMMUNITY MUST COME INTO PLAY WHENEVER AN AUTHORITY OTHER THAN ONE OF THE INSTITUTIONS OF THE COMMUNITY ENFORCES AGAINST THE COMMUNITY A DECISION WHICH ALTERS ITS LEGAL POSITION;

WHEREAS THE COURT IS THEREFORE BOUND TO ASCERTAIN, IN EACH CASE, WHETHER SUCH CONSTRAINT IS PRESENT IN RELATION TO THE NATIONAL LEGAL PROVISIONS UPON WHICH THE MEASURE AT ISSUE IS BASED;

WHEREAS GARNISHEE PROCEEDINGS AS INSTITUTED BY MR AND MRS HUBNER UNDER LUXEMBOURG LAW CONSIST OF A SINGLE PROCEDURE, ALBEIT COMPOSED OF TWO STAGES, FIRST ATTACHMENT AND SECONDLY, BY WAY OF VALIDATION, ENFORCEMENT;

WHEREAS PROCEDURAL DIFFERENCES MAY EXIST BETWEEN THESE TWO STAGES BUT FOR THE PURPOSES OF THE AUTHORIZATION TO BE GIVEN BY THE COURT IT IS NOT POSSIBLE TO DISTINGUISH TWO SEPARATE ACTIONS, SINCE THE FIRST STAGE OF THE PROCEEDINGS, RELATING TO ATTACHMENT, LEADS IN LAW DIRECTLY TO THE SUBSEQUENT ENFORCEMENT;

WHEREAS, MOREOVER, LEGAL THEORY AND CASE LAW ARE AGREED THAT THE GARNISHEE ORDER IS A SINGLE LEGAL REMEDY;

WHEREAS UNDER LUXEMBOURG LAW, HOWEVER, EACH STAGE OF GARNISHEE PROCEEDINGS ALTERS THE LEGAL POSITION OF THE GARNISHEE;

WHEREAS THE ATTACHMENT ORDER, WHICH BINDS THE DEBT OWED TO THE JUDGMENT DEBTOR, SETS THAT DEBT APART AMONGST THE GARNISHEE'S ASSETS, IT BEING THEREAFTER IMPOSSIBLE AT LAW TO SET OFF IN THE LATTER'S FAVOUR SUCH DEBTS AS MIGHT ARISE BETWEEN THE GARNISHEE AND THE JUDGMENT DEBTOR;

WHEREAS, FURTHER, DECIDED CASES HAVE CONSISTENTLY HELD THAT THE ENFORCEMENT ORDER, IN THIS CASE THE GARNISHEE ORDER ABSOLUTE SUBSTITUTING THE GARNISHEE, FOR THE PURPOSES OF PAYMENT, FOR THE JUDGMENT DEBTOR, IS NOT MERELY AN ORDER TO PAY BUT IS THE RESULT OF AN ASSIGNMENT OF THE CLAIM, WHEREBY THE GARNISHEE BECOMES THE DIRECT DEBTOR OF THE JUDGMENT CREDITOR;

WHEREAS, IN THESE CIRCUMSTANCES AND HAVING REGARD TO THE LEGAL SITUATION IN THIS CASE, THERE ARE GROUNDS FOR FINDING THAT IN RELATION TO THE COMMUNITY THERE EXISTS A MEASURE OF CONSTRAINT WITHIN THE MEANING OF ARTICLE 1 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL COMMUNITY;

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WHEREAS NEITHER THE STATEMENTS OF THE PARTIES NOR THE FINDINGS OF THE COURT OFFER GROUNDS FOR REFUSAL OF THE AUTHORIZATION SOUGHT;

WHEREAS IT SHOULD THEREFORE BE GRANTED;

THE COURT

HEREBY :

AUTHORIZES THE APPLICANTS TO ENFORCE A GARNISHEE ORDER AGAINST THE HIGH AUTHORITY IN RESPECT OF THEIR CLAIM AGAINST MR KUHBIER .