1.

On the basis of that idea the plaintiff in the main action, Italy and the Commission are in favour of excluding the application of Article 27 (2) to judgments ordering a provisional or protective measure at the conclusion of ex parte proceedings. They claim that judgments of this sort may be made at the national level in all Contracting States. It is also true, at the national level, for the United Kingdom, Ireland and Denmark in which the Convention is not yet in force. Since the object of the Convention is to make possible at Community level what is already possible at national level, they come to the conclusion that the recognition and enforcement of such measures must be possible at Community level.

For all its impeccable logic, it seems to me that this argument completely disregards the special character of ex parte provisional or protective measures.

That the authors of the Convention were aware of the specific features of these measures is clear from the special jurisdiction to deal with them provided in Article 24. According to that provision: “Application may be made to the courts of a Contracting State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another Contracting State have jurisdiction as to the substance of the matter.”

We should give particular attention to the all-embracing nature of this jurisdiction, indicated by the words “even if”. Under the normal rules of the Convention conferring jurisdiction, a court has no jurisdiction to entertain disputes which, in substance, concern a court of another Contracting State. To my way of thinking the special jurisdiction in Article 24 would have been quite superfluous if the authors of the Convention had intended that judgments given in a State other than the State of the court having jurisdiction under Article 24 should automatically become enforceable within the territorial jurisdiction of the latter court.

I therefore draw some comfort in thinking that provisional and protective measures have a special nature from the text of The Hague Convention of 1 February 1971 drawn up under the auspices of The Hague Conference on Private International Law of which all the Community States are members. According to Article 2 (2), that Convention does not apply to judgments ordering provisional or protective measures. The preparatory studies show that that provision was already included in the preliminary draft adopted by the commission charged with the drafting of the text and was not questioned thereafter. According to the rapporteur of the Convention that provision is in accord with the prevailing opinion to the effect that such measures must be considered as coming within the exclusive jurisdiction of the country in which they are to be applied.

However, it would not be right to conclude from the foregoing that I am adopting the opinion, expressed during the oral procedure by the United Kingdom representative, that under the Brussels Convention no provisional or protective measure, whether adopted in ex parte or in adversary proceedings, can have extra-territorial effect.

In my view it all depends on the nature of the judgment concerning the measure. If, on the one hand, the judgment by the court of origin is enforceable, it would be a clear breach of the universally recognized principle of the territoriality of the enforcement of judicial decisions.

In the Convention, such territoriality takes the form of the exclusive jurisdiction laid down in Article 16 (5) under which: “The following courts shall have exclusive jurisdiction, regardless of domicile:... in proceedings concerned with the enforcement of judgments, the courts of the Contracting State in which the judgment has been or is to be enforced”.

If, on the other hand, the judgment is just a declaration by which a court authorizes the plaintiff to apply to a court in another Contracting State to have it enforced under the enforcement procedures provided for in that court's own law, then the jurisdiction of the court addressed seems to me to be respected.

In short, the special nature of provisional and protective measures calls for the adoption of an intermediate opinion. I think that if they have been adopted in the form I have just indicated and, in addition, at the conclusion of adversary proceedings, they may have extraterritorial effect by virtue of the rules of the Brussels Convention on enforcement. Conversely, this same special nature leads me to say that similar measures adopted at the conclusion of ex parte proceedings do not come under the rules of the Convention.

It is therefore this ex parte nature of the proceedings which, to my way of thinking, justifies this difference in treatment.

2.

This is not however the opinion of those who contend that Article 27 (2) does not apply to ex parte provisional and protective measures. In their view, requiring proof of service of the document instituting the proceedings to obtain an order for enforcement of those measures is tantamount to robbing them of all practical effect.

This is an argument which the Oberlandesgericht had in mind, too. It expresses its fear by stating that “the surprise effect, obviously intended, of the protective measure decreed by the President of the Tribunal de Grande Instance, Montbrison,... which in all probability would be decisive for the success of the enforcement of that measure, would be lost if, in that case too, the plaintiff's application... instituting the proceedings and the judgment of the same date of the French court applied to were subject to the requirement of prior service in order to obtain an order for enforcement”.

It cannot be denied that speed and the surprise effect are essential for the success of measures of this type. However, I do not think that this is the only consideration to be taken into account; in international relations it is second in importance to the observance of the rights of the defence. Even in national legal systems judgments ordering ex parte provisional or protective measures have far-reaching effects. They are a seriously disturbing factor in the normal judicial order, of which the adage audi alteram partem is a cornerstone. In the field of commercial relationships the freezing of a bank account may result in serious consequences for the undertaking affected.

Moreover, third parties who are in a business relationship with the defendant are affected by the repercussions of such a measure. For example, a defendant's customers to whom a refused cheque or bill was payable may suffer serious injury owing to the impossibility of obtaining immediate payment. These risks seem to me to be particularly acute in certain international commercial sectors where very large sums or goods of great value may change hands several times within a short space of time.

Acting solely on the basis of the plaintiff's assertions, the court of origin will have no means of checking whether the goods whose seizure is sought still in fact belong to the defendant when they may have been sold just a moment before, or whether third parties have prior claim to them. If serious prejudice to the rights of third parties is to be prevented and if the risk of increasing the uncertainty of commercial transactions is not to be accepted, it is essential that measures such as “saisie conservatoire” [attachment] in French law should rapidly be brought to the notice of all concerned and that they should have the opportunity to take immediate counter-action.

A defendant wanting to obtain the release of his goods from the measures taken against them must be in a position to put forward his arguments in the shortest possible time. Can this be possible when a measure has been authorized by a court of one State and made enforceable by a court of another State?

I do not think so.

What then can the debtor do?

He may go to the court of origin. Let us imagine — the most favourable case — in order to highlight this, that he is domiciled in the State to which that court belongs. This will make his task easier from the linguistic and legal point of view. But one must not forget that since the measure was ex parte, the defendant will get to know of its enforcement through the foreign court which has ordered it, which may be the first cause of delay. Even if he obtains a rapid lifting of the measures against his goods, he will still have to contend with the transmission of that judgment to the country of enforcement, which may be a second cause of delay.

But the most frequent case will be the one where a defendant is not domiciled in the same State as the court of origin. For obvious practical reasons he will need a certain amount of time to make his application to it.

Can the defendant challenge the measure before the court of the place of enforcement? Article 29 of the Convention certainly does not allow him to rely ori substantive arguments. No doubt he will be able to prove, as Jenard suggests in his commentary to Article 37 (Reports on the Convention (Official Journal of the European Communities C 59 of 5 March 1979, p. 51)), that he has paid his debt since the foreign judgment was delivered. But that possibility is indeed minimal and does not go very far towards ensuring appropriate protection in all cases.

If, for example, the debtor denies that he is the owner of the goods seized because he has just sold them, the exclusion of substantive review, which is justified in other circumstances, will prevent him from assessing that argument. Similarly, the third party acquiring the goods will have no right of access to the court.

It follows that a quick and effective appeal is not possible either in the court of origin or in the court addressed. To be effective, an appeal against enforcement of a preventive measure requires that the court which is to take cognizance of it shall have jurisdiction both in regard to the justification for this measure and the form it must take and it must also be able to give immediate effect to the decision at which it arrives, whatever it may be. I think that I have shown that these conditions are not met either in the court of origin or in the court of the place of enforcement.

3.

This inability of a defendant to take quick and effective counter-action against a judgment from a foreign court at the conclusion of ex parte proceedings for a provisional or protective measure against him, is, I feel, an unjustified infringement of the rights of the defence.

However, the Brussels Convention is founded upon the strict observance of such rights. This is evidenced by Article 2 which is a straightforward application of the maxim actor sequitur forum rei. As Jenard explains, that the court of the defendant should in principle have jurisdiction “is even more relevant in the international sphere than it is in national law. It is more difficult, generally speaking, to defend oneself in the courts of a foreign country than in those of another town in the country where one is domiciled” (Report on the Convention, Official Journal of the European Communities C 59 of 5 March 1979, p. 18).

Similarly, the second paragraph of Article 20 of the Convention which stipulates that “the court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end”, is also designed to safeguard the rights of the defendant, by recognizing the international importance of the service of judicial documents (Jenard, Report on the Convention, p. 39).

This strictness of the requirement that the rights of the defence must be observed is not without purpose. It is the counterpart to the extreme liberality of the Convention as regards the recognition and enforcement of judgments. It is possible to accept this liberality only if the court addressed can have full confidence in the judgment of the court of origin. The same thought is expressed by Jenard when he writes, at the start of his general considerations on recognition and enforcement (Report on the Convention, p. 42) that “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”.

Consequently the scheme of the Convention in my opinion rules out the possibility of the defendant's being taken by surprise by the enforcement of a judgment which has not been served on him and when he did not even know that the court had given it. The importance of observing the rights of the defence also makes me think that if the authors of the Convention had intended that a refusal of recognition and enforcement on the ground given in Article 27 (2) should not apply in the case of decisions such as those in question in the main action, they would have said so expressly.

The possibility cannot even be excluded that courts in certain States which have a particularly strict concept of the rights of the defence would refuse to grant an enforcement order for judgments ordering a provisional or protective measure at the conclusion of ex parte proceedings on the ground that such judgments are contrary to national public policy.

1.

Such a conclusion would overlook Article 24, referred to earlier, a corresponding provision to which is found in nearly all enforcement conventions (Jenard Report, at p. 42). The terms of this provision do not in any way prevent provisional or protective measures which are sought from the courts of another Contracting State, even when a court of another Contracting State has jurisdiction as to the substance of the matter, from being granted at the conclusion of ex parte proceedings if the internal law of the court applied to makes provision for them.

The advantage of an application under Article 24 is that the court applied to not only has full power as far as the procedure is concerned; it also has cognizance of the facts of the case. Even if it makes only a cursory and provisional inquiry, it does in fact need to inquire into the circumstances of the case in order to decide upon the expediency of granting the measure which is sought. From the procedural point of view the choice of measure which it regards as the most appropriate from those available under national law of course is a matter for that court alone. The comprehensive view which it thus has of a case puts it alone in a position to adjudicate, in the full knowledge of the facts of the case, on any objections which the defendant may put forward against the measure which it has taken.

Clearly, a further necessary requirement enabling Article 24 to be actually used in a case such as the one in the main action is that all Contracting States should have a procedure of the “saisie conservatoire” type under French law. The Commission has told us that is the case as regards the States between which the Convention is now in force.

The United Kingdom representative told us during the oral procedure about the “Mareva injunction” named after a case decided by the Court of Appeal in 1975. By an injunction of that type a court restrains a defendant from taking the funds concerned out of its jurisdiction following proceedings which may be ex parte. The Agent of the British Government also informed us that under the legislation which his country is preparing with a view to its accession to the Convention the benefit of the “Mareva injunction” will be extended to cases in which a court of another Contracting State has jurisdiction as to the substance of the matter.

In Denmark a measure similar to the French “saisie conservatoire” may be obtained by virtue of the combined provisions of Articles 612 and 628 of the Law on the administration of justice (“Lov om rettens pleje”).

According to my information it seems that the possiblility also exists in Ireland of obtaining from the court the freezing of bank assets, to take the case here, without the defendant's being given prior notice.

There is therefore no practical obstacle preventing Article 24 from being invoked in bilateral relations between all States now members of the Community, once the Convention is also in force in the United Kingdom, Ireland and Denmark.

2.

During the oral procedure the Commission pointed out a drawback to Article 24 which arises particularly when a defendant has assets in several countries. A plaintiff wishing to seize them would therefore be obliged to seek urgent measures in each of these.

Practical difficulties would result out of all proportion to those arising from the solution advocated by the Commission. In the case of the latter solution the plaintiff's obligation is limited to seeking enforcement of the foreign judgment ordering a provisional or protective measure following ex parte proceedings under the summary procedure laid down by the Convention. On the other hand, under Article 24, every application for urgent measures would necessitate on the part of the court addressed the fuller inquiry of which I spoke.

It is true that this is a difficulty which the defendant must accept. But I regard it as a fair price to pay for obtaining from the court the extraordinary measures he is seeking and, conversely, an expression of the consideration which must be shown to the debtor. Moreover it may be thought that in practice the creditors having to resort to these measures will in most cases have an organization enabling them to overcome this drawback.

Above all I am not sure that plaintiffs will obtain an order for an enforcement as easily as the Commission thinks. Even with regard to relations between the six original members of the Community this case illustrates the hesitations of certain national courts. What will the position be in regard to the three States which have not yet ratified the Brussels Convention?

The novelty of the “Mareva” injunction, which, moreover, does not seem to have been accepted without some reticence, leads me to believe that the ordering of the enforcement of a judgment authorizing a provisional or protective measure following ex parte proceedings will not be a straightforward matter for courts in Common Law countries, quite apart from the fact that, as their law now stands, the direct enforcement of foreign judgments is unknown.

In Denmark, even within the privileged context of the Nordic Council, a decision may not in principle be recognized and enforced by virtue of Law No 300 of 8 June 1977 unless it is definitive. It is true that the operation of that Law is extended, by way of exception, to a few judgments which are not definitive and are listed therein but judgments given pursuant to ex parte proceedings do not figure in the list.

In these circumstances I see some justification for fearing that, looking ahead to the welcome accession to the Convention of the United Kingdom, Ireland and Denmark, certain courts which are applied to may refuse to recognize or enforce judgments such as those which have given rise to this request for a preliminary ruling. Far from strengthening legal certainty and promoting the free movement of judgments within the Common Market, an effect contrary to that sought by the Brussels Convention would be the unfortunate outcome.

For these reasons I propose that the Court should rule that Articles 27 (2), 46 (2) and 47 (1) apply to proceedings in which the adoption of provisional and protective measures is ordered without the other party's having been heard.

1.

Articles 27 (2) and 46 (2) apply to proceedings in which the adoption of provisional and protective measures is ordered without the other party's having been heard.

2.

Article 47 (1), in stipulating that the party seeking enforcement must produce the documents establishing that the judgment to be enforced has been served, also applies to judgments ordering a provisional or protective measure following ex parte proceedings.

3.

A defendant in enforcement proceedings is not allowed to rely in those proceedings on a set-off arising before the judgment was given by the court of origin.

4.

The same applies a fortiori if he has already raised that objection during an appeal against the judgment given in the State of origin.