61976J0042

CONVENTION OF 27 SEPTEMBER 1968 - JUDGMENT OBTAINED IN A MEMBER STATE - ENFORCEMENT IN ANOTHER CONTRACTING STATE POSSIBLE BY VIRTUE OF ARTICLE 31 OF THE CONVENTION - APPLICATION CONCERNING THE SAME SUBJECT-MATTER AND BETWEEN THE SAME PARTIES BROUGHT BEFORE A COURT OF THAT STATE - PROHIBITION - COSTS OF PROCEDURE

( CONVENTION OF 27 SEPTEMBER 1968 , ART . 31 )

THE PROVISIONS OF THE CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS OF 27 SEPTEMBER 1968 PREVENT A PARTY WHO HAS OBTAINED A JUDGMENT IN HIS FAVOUR IN A CONTRACTING STATE , BEING A JUDGMENT FOR WHICH AN ORDER FOR ENFORCEMENT UNDER ARTICLE 31 OF THE CONVENTION MAY ISSUE IN ANOTHER CONTRACTING STATE , FROM MAKING AN APPLICATION TO A COURT IN THAT OTHER STATE FOR A JUDGMENT AGAINST THE OTHER PARTY IN THE SAME TERMS AS THE JUDGMENT DELIVERED IN THE FIRST STATE . THE FACT THAT THERE MAY BE OCCASIONS ON WHICH , ACCORDING TO THE NATIONAL LAW APPLICABLE , THE PROCEDURE SET OUT IN ARTICLES 31 ET SEQ . OF THE CONVENTION MAY BE FOUND TO BE MORE EXPENSIVE THAN BRINGING FRESH PROCEEDINGS ON THE SUBSTANCE OF THE CASE DOES NOT INVALIDATE THESE CONSIDERATIONS .

IN CASE 42/76

REFERENCE TO THE COURT UNDER ARTICLES 2 AND 3 OF THE PROTOCOL OF 3 JUNE 1971 ( OJ L 204 OF 2 AUGUST 1975 , P . 28 ) CONCERNING 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 ( JO L 299 OF 31 DECEMBER 1972 , P . 32 ) BY THE HOGE RAAD OF THE NETHERLANDS FOR A PRELIMINARY RULING IN THE APPEAL BEFORE THAT COURT LODGED BY THE ATTORNEY GENERAL TO THE HOGE RAAD AGAINST A JUDGMENT OF THE KANTONRECHTER OF BOXMEER DELIVERED IN PROCEEDINGS BETWEEN

JOZEF DE WOLF , TURNHOUT ( BELGIUM )

AND

HARRY COX B.V ., BOXMEER ( THE NETHERLANDS )

ON THE INTERPRETATION OF THE SAID CONVENTION , AND IN PARTICULAR OF ARTICLE 31 THEREOF .

1 BY JUDGMENT OF 7 MAY 1976 , RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 14 MAY , THE HOGE RAAD OF THE NETHERLANDS HAS REFERRED TO THE COURT A QUESTION ON THE INTERPRETATION , IN PARTICULAR , OF ARTICLE 31 OF THE CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS OF 27 SEPTEMBER 1968 , HEREINAFTER REFERRED TO AS ' THE CONVENTION ' .

2 IT APPEARS FROM THE FILE THAT THE PLAINTIFF IN THE MAIN ACTION , RESIDENT IN BELGIUM , HAVING OBTAINED A JUDGMENT FROM THE JUGE DE PAIX OF TURNHOUT ( BELGIUM ) ORDERING THE DEFENDANT IN THE MAIN ACTION , HAVING ITS HEAD OFFICE IN THE NETHERLANDS , TO PAY AN INVOICE , LODGED AN APPLICATION BEFORE THE KANTONRECHTER ( JUGE DE PAIX ) OF BOXMEER ( THE NETHERLANDS ) AGAINST THE SAME DEFENDANT AND IN RESPECT OF THE SAME MATTER .

3 THE KANTONRECHTER , HAVING HEARD THE DEFENDANT , HELD THAT THE APPLICATION WAS ADMISSIBLE AND GAVE JUDGMENT ON THE SUBSTANCE OF THE CASE IN THE SAME TERMS AS THE BELGIAN COURT .

4 IN SO DOING , THE DUTCH COURT TOOK THE VIEW , INTER ALIA , ON THE ONE HAND , THAT IT WAS REQUIRED TO RECOGNIZE THE BELGIAN JUDGMENT UNDER ARTICLE 26 OF THE CONVENTION BUT THAT , ON THE OTHER , UNDER THE LEGISLATION OF THE NETHERLANDS , THE PROCEDURE CHOSEN BY THE APPLICANT WAS LESS EXPENSIVE FOR THE PARTIES THAN THE PROCEDURE UNDER ARTICLES 31 ET SEQ . OF THE CONVENTION WOULD HAVE BEEN . UNDER THE LATTER PROCEDURE AN APPLICATION FOR AN ORDER FOR THE ENFORCEMENT OF THE JUDGMENT DELIVERED BY THE BELGIAN COURT WOULD HAVE BEEN BROUGHT BEFORE THE PRESIDENT OF THE ARRONDISSEMENTRECHTBANK WHICH HAD JURISDICTION .

5 THE ATTORNEY-GENERAL OF THE HOGE RAAD BROUGHT AN APPEAL AGAINST THE JUDGMENT OF THE KANTONRECHTER BEFORE THE HOGE RAAD ON THE GROUND THAT THE KANTONRECHTER OUGHT TO HAVE DECLARED THE APPLICATION INADMISSIBLE , BECAUSE THE PROCEDURE UNDER ARTICLE 31 OF THE CONVENTION IS THE ONLY MEANS AVAILABLE TO THE APPLICANT FOR THE PURPOSE OF ENFORCING THE JUDGMENT OF THE BELGIAN COURT .

6 THE HOGE RAAD IS ASKING THE COURT , IN SUBSTANCE , TO RULE WHETHER THE CONVENTION PREVENTS A PLAINTIFF WHO HAS OBTAINED A JUDGMENT IN HIS FAVOUR IN A CONTRACTING STATE , BEING A JUDGMENT FOR WHICH AN ORDER FOR ENFORCEMENT UNDER ARTICLE 31 OF THE CONVENTION MAY ISSUE IN ANOTHER CONTRACTING STATE , FROM MAKING AN APPLICATION TO A COURT IN THAT OTHER STATE FOR A JUDGMENT AGAINST THE OTHER PARTY IN THE SAME TERMS AS THE JUDGMENT DELIVERED IN THE FIRST STATE .

7 THE FIRST PARAGRAPH OF ARTICLE 26 OF THE CONVENTION PROVIDES : ' A JUDGMENT GIVEN IN A CONTRACTING STATE SHALL BE RECOGNIZED IN THE OTHER CONTRACTING STATES WITHOUT ANY SPECIAL PROCEDURE BEING REQUIRED ' .

8 ALTHOUGH ARTICLES 27 AND 28 LAY DOWN CERTAIN EXCEPTIONS TO THIS DUTY OF RECOGNITION , ARTICLE 29 NEVERTHELESS PROVIDES THAT ' UNDER NO CIRCUMSTANCES MAY A FOREIGN JUDGMENT BE REVIEWED AS TO ITS SUBSTANCE ' .

9 WHEN AN APPLICATION FOR A REVIEW AS TO SUBSTANCE IS DECLARED ADMISSIBLE , THE COURT BEFORE WHICH THE APPLICATION IS HEARD IS REQUIRED TO DECIDE WHETHER IT IS WELL FOUNDED , A SITUATION WHICH COULD LEAD THAT COURT TO CONFLICT WITH A PREVIOUS FOREIGN JUDGMENT AND , THEREFORE , TO FAIL IN ITS DUTY TO RECOGNIZE THE LATTER .

10/11 TO ACCEPT THE ADMISSIBILITY OF AN APPLICATION CONCERNING THE SAME SUBJECT-MATTER AND BROUGHT BETWEEN THE SAME PARTIES AS AN APPLICATION UPON WHICH JUDGMENT HAS ALREADY BEEN DELIVERED BY A COURT IN ANOTHER CONTRACTING STATE WOULD THEREFORE BE INCOMPATIBLE WITH THE MEANING OF THE PROVISIONS QUOTED . IT ALSO RESULTS FROM ARTICLE 21 OF THE CONVENTION , WHICH COVERS CASES IN WHICH PROCEEDINGS ' INVOLVING THE SAME CAUSE OF ACTION AND BETWEEN THE SAME PARTIES ARE BROUGHT IN THE COURTS OF DIFFERENT CONTRACTING STATES ' AND REQUIRES THAT A COURT OTHER THAN THE FIRST SEISED SHALL DECLINE JURISDICTION IN FAVOUR OF THAT COURT , THAT PROCEEDINGS SUCH AS THOSE BROUGHT BEFORE THE KANTONRECHTER OF BOXMEER ARE INCOMPATIBLE WITH THE OBJECTIVES OF THE CONVENTION .

12 THAT PROVISION IS EVIDENCE OF THE CONCERN TO PREVENT THE COURTS OF TWO CONTRACTING STATES FROM GIVING JUDGMENT IN THE SAME CASE .

13 FINALLY , TO ACCEPT THE DUPLICATION OF MAIN ACTIONS SUCH AS HAS OCCURRED IN THE PRESENT CASE MIGHT RESULT IN A CREDITOR ' S POSSESSING TWO ORDERS FOR ENFORCEMENT ON THE BASIS OF THE SAME DEBT .

14 THE FACT THAT THERE MAY BE OCCASIONS ON WHICH , ACCORDING TO THE NATIONAL LAW APPLICABLE , THE PROCEDURE SET OUT IN ARTICLES 31 ET SEQ . OF THE CONVENTION MAY BE FOUND TO BE MORE EXPENSIVE THAN BRINGING FRESH PROCEEDINGS ON THE SUBSTANCE OF THE CASE DOES NOT INVALIDATE THESE CONSIDERATIONS .

15 IN THIS RESPECT , IT MUST BE OBSERVED THAT THE CONVENTION , WHICH , IN THE WORDS OF THE PREAMBLE THERETO , IS INTENDED ' TO SECURE THE SIMPLIFICATION OF FORMALITIES GOVERNING THE RECIPROCAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS OF COURTS OR TRIBUNALS ' , OUGHT TO INDUCE THE CONTRACTING STATES TO ENSURE THAT THE COSTS OF THE PROCEDURE DESCRIBED IN THE CONVENTION ARE FIXED SO AS TO ACCORD WITH THAT CONCERN FOR SIMPLIFICATION .

16 THE QUESTION RAISED BY THE HOGE RAAD OF THE NETHERLANDS SHOULD THEREFORE BE ANSWERED IN THE AFFIRMATIVE .

COSTS

17 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

18 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE HOGE RAAD OF THE NETHERLANDS , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HOGE RAAD OF THE NETHERLANDS BY JUDGMENT OF 7 MAY 1976 , HEREBY RULES :

THE PROVISIONS OF THE CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS OF 27 SEPTEMBER 1968 PREVENT A PARTY WHO HAS OBTAINED A JUDGMENT IN HIS FAVOUR IN A CONTRACTING STATE , BEING A JUDGMENT FOR WHICH AN ORDER FOR ENFORCEMENT UNDER ARTICLE 31 OF THE CONVENTION MAY ISSUE IN ANOTHER CONTRACTING STATE , FROM MAKING AN APPLICATION TO A COURT IN THAT OTHER STATE FOR A JUDGMENT AGAINST THE OTHER PARTY IN THE SAME TERMS AS THE JUDGMENT DELIVERED IN THE FIRST STATE .