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Document 61977CC0043
Opinion of Mr Advocate General Reischl delivered on 19 October 1977. # Industrial Diamond Supplies v Luigi Riva. # Reference for a preliminary ruling: Rechtbank van eerste aanleg Antwerpen - Belgium. # Convention of 27 September 1968 - Stay of proceedings (Articles 30 and 38). # Case 43-77.
Konklużjonijiet ta' l-Avukat Ġenerali - Reischl - 19 ta' Ottubru 1977.
Industrial Diamond Supplies vs Luigi Riva.
Talba għal deċiżjoni preliminari: Rechtbank van eerste aanleg Antwerpen - il-Belġju.
Kawża 43-77.
Konklużjonijiet ta' l-Avukat Ġenerali - Reischl - 19 ta' Ottubru 1977.
Industrial Diamond Supplies vs Luigi Riva.
Talba għal deċiżjoni preliminari: Rechtbank van eerste aanleg Antwerpen - il-Belġju.
Kawża 43-77.
ECLI identifier: ECLI:EU:C:1977:162
OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 19 OCTOBER 1977 ( 1 )
Mr President,
Members of the Court,
The defendant in the proceedings which have given rise to the reference for a preliminary ruling which I must discuss today, an Italian commercial representative, obtained on 23 September 1976 from the Tribunale Civile e Penale (Civil and Criminal Court), Turin, a judgment ordering the plaintiff in the main action, a Belgian limited liability company, to pay a certain sum. On 27 December 1976 a Kassationsbeschwerde (appeal in cassation) was lodged against that judgment before the Corte Suprema di Cassazione (supreme court of appeal) in Rome; under Italian law such an appeal does not suspend the execution of the contested judgment. Apparently no recourse was had to the possibility of applying to the Italian court which delivered the contested judgment for a stay of execution.
The defendant in the main action wishes to enforce in Belgium the judgment of the Tribunale Civile e Penale, Turin. For this purpose he obtained from the Rechtbank van Eerste Aanleg (Court of First Instance) in Antwerp an order for its enforcement in accordance with Article 31 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as ‘the Convention on Jurisdiction’).
The plaintiff in the main action appealed against this decision, which was made on 25 November 1976, in accordance with Article 36 of the Convention on Jurisdiction. At the same time it requested a stay of the proceedings concerning the order for enforcement until a final judgment had been delivered in Italy or at least that the enforcement should be made conditional on the provision of security by the defendant. It based these requests on Article 38 of the Convention on Jurisdiction which provides that:
‘The court with which the appeal under the first paragraph of Article 37 is lodged may, on the application of the appellant, stay the proceedings if an ordinary appeal has been lodged against the judgment in the State in which that judgment was given or if the time for such an appeal has not yet expired; in the latter case, the Court may specify the time within which such an appeal is to be lodged.
The Court may also make enforcement conditional on the provision of such security as it shall determine’.
The plaintiff takes the view that for the purpose of the appraisal of the question whether there has been an ordinary appeal the law of the State in which that judgment was given is important. In accordance with that law, in this case Italian law, an appeal in cassation is however considered as an ordinary appeal, in contrast to Belgian law, because it prevents the decision from having the force of res judicata.
The judgment creditor objects that the application of Article 38 of the Convention on Jurisdiction does not come into consideration because an appeal in cassation does not preclude enforcement under either Italian or Belgian law.
The decision on the application for a stay of the proceedings therefore depends on the question whether the appeal in cassation lodged in Italy is an ordinary appeal within the meaning of the Convention on Jurisdiction. Since the Convention is not in the view of the Belgian court completely clear in this respect, it stayed the proceedings by judgment of 7 April 1977 and referred to the Court the following questions for a preliminary ruling under the Protocol of 3 June 1971 issued under the Convention on Jurisdiction:
1. |
What appeals are regarded as ‘ordinary’ appeals in Articles 30 and 38 of the Convention of 27 September 1968, or, in other words, to what judgments are Articles 30 and 38 of the Convention applicable? or |
2. |
Is the nature of the appeal lodged against the judgment in the State in which that judgment was given to be determined solely in accordance with the law of that State? |
I — |
I shall begin my opinion with two short observations. |
1. |
The questions obviously go further than is necessary for the purposes of the main action. They not only mention Article 38 of the Convention on Jurisdiction but also Article 30 thereof which relates to the recognition of a decision given in another Contracting State. In addition, the first part of the first question mentions appeals quite generally while only the second part of the question confines itself to judgments. Thus the problem arises whether I should simply adhere to the questions or whether I should restrict myself according to the known facts. My opinion is that I should take the latter course and restrict my examination to appeals which can be lodged against judgments. The problem is already complex enough as it is. In addition some of the problems relating to other judicial decisions are different so that, with regard to the present case, there is little to be gained from consideration of them. In this respect I shall merely recall the observation made by the Government of the Federal Republic of Germany that other judicial decisions are of lesser importance, normally serve other purposes and in addition often do not formally acquire the force of res judicata. I should also confine myself in principle to the interpretation of Article 38, which relates to proceedings for enforcement. This does not however prevent Article 30 of the Convention on Jurisdiction, which relates to the recognition of foreign judgments and also uses the expression ‘ordinary appeal’, from being included in the examination too in so far as it is necessary to discuss an argument which the Commission has based upon it. |
2. |
According to the wording of the questions chosen by the court making the reference there are two possibilities of interpretation: the concept of ‘ordinary appeal’ may be an independent concept used in the Convention on Jurisdiction, or else the law of the State in which the judgment was given may be determinative in this respect. A third possibility was mentioned by the Government of the Federal Republic of Germany: the law of the State in which enforcement is sought might also be decisive with regard to the classification. I consider, and I may say that from the beginning, that this third possibility should not be seriously taken into consideration. In fact, quite apart from other arguments which it will be necessary to examine later in connexion with the other possibilities an important objection to the feasibility of deciding according to the law of the State in which enforcement is sought immediately arises. Appeals obviously take different forms in the legal systems of the Member States. Thus in many cases, in particular in the case of atypical appeals, consideration of the law of the State in which enforcement is sought would not enable an unequivocal statement to be made, but only the statement that a specific foreign appeal may more or less be equated with a specific national appeal. Such a classification would therefore not be clearcut. It would involve too much uncertainty and cannot therefore be seriously taken into consideration for the purposes of the interpretation of a convention in the application of which the principle of legal certainly ranks highly. |
II — |
Turning next directly to the questions submitted by the court making the reference, there is on the one hand the view, and I shall confine myself to the arguments which were substantiated in detail in the proceedings for a preliminary ruling, that the important factor is the law of the State in which the judgment was given. This view is taken by the Government of the United Kingdom and, albeit with little force, by the Commission. On the other hand, the Government of the Federal Republic of Germany has declared itself in favour of the assumption that there is a common independent concept of ‘ordinary appeal’ in the Convention on Jurisdiction. |
1. |
In the appraisal of this dispute I should like to discuss first an argument which tells strongly in favour of the first solution, classification according to the law of the State in which the judgment was given. It is based on the draft convention by means of which the three new Member States are to accede to the Convention on Jurisdiction. In view of the fact that in the law of the United Kingdom and in Irish law there is a variety of appeals, that no distinction is made between them, even by learned authors, according to whether they are ordinary or extraordinary appeals, and that it is difficult to determine criteria for a distinction, that draft provides that a paragraph shall be added to Article 38, according to which if a decision has been given in Ireland or in the United Kingdom any appeal provided for in the original State must be considered as an ordinary appeal for the purpose of the application of the first paragraph of Article 38. In addition it was claimed that if the convention is really based upon an independent concept of ‘ordinary appeal’ it must have been possible to apply the criteria applicable thereto also to the appeals known in the United Kingdom and in Ireland and to designate accordingly those which must be considered as ordinary or extraordinary. The fact that no attempt was made to do so tells against the assumption that there is an independent concept with specific criteria contained in the Convention. In addition it must seem strange that all appeals existing in the United Kingdom and in Ireland must be classified as ordinary. There are no doubt also those which correspond to extraordinary appeals in other Member States. Since nevertheless the abovementioned provision of the draft convention has been decided upon, the assumption that the Convention on Jurisdiction contains an independent concept of ordinary appeal leads to the conclusion that exceptions have been permitted for two Member States. This must however appear incomprehensible. I make no secret of the fact that this argument made a considerable impression on me. However, it does not seem to be completely conclusive. For example, it is simply impossible to overlook the fact that until now this is merely a draft; the proposed provision has not yet become binding. In addition, it is certainly conceivable that if the Court of Justice reaches the view that the Convention contains an independent concept of ‘ordinary appeal’ in respect of which specific criteria apply, an attempt will also be made to classify English and Irish law accordingly. I am therefore of the opinion that I can safely leave aside the argument based on the abovementioned draft convention. |
2. |
An appraisal of the remaining considerations which have been put forward for and against a Community concept of ‘ordinary appeal’ reveals, and I must say this immediately, more important reasons in favour of such a concept than reasons in favour of classification according to the law of the State in which the judgment was given.
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III — |
Consequently, since the examination has hitherto shown that there are important reasons for assuming the use of an independent concept of ‘ordinary appeal’ in the Convention on Jurisdiction, the task of establishing the criteria which are decisive with regard to the common concept still remains. This is certainly not easy since the Convention provides but few indications in this respect. If however these indications are evaluated and the objectives and structure of the Convention and the general principles which stem from the corpus of the national legal systems are taken into consideration, as stated in the abovementioned judgment in Case 29/76, sufficiently practicable statements may be made.
There can be very little more to say from the point of view of Community law with regard to the criteria for determining whether ordinary or extraordinary appeals are involved, within the meaning of the Convention. |
IV — |
I therefore conclude that the following reply should be given to the questions referred for a preliminary ruling:
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( 1 ) Translated from the German.