OPINION OF MR REISCHL — CASE 29/76 LTU v EUROCONTROL

Mr President,

Members of the Court,

The question referred for a preliminary ruling, on which I am giving opinion today, relates to the expression civil and commercial matters, which appears in Article 1 of the Convention on jurisdiction and the enforcement of Judgments in Civil and Commercial matters — in short the Convention on Jurisdiction — and which defines the Convention's field of application. In this connexion the Oberlandsgericht, Düssel-dorf, pursuant to the Protocol on the interpretation of the said Convention, has raised the question whether the interpretation of the said expression is governed by the law of the State in which the judgment on the claim was given (in this case Belgium) or the law of the State in which the order for its enforcement has to be issued (in this case the Federal Republic of Germany).

I must first of all make some preliminary observations on the facts underlying this question.

On 13 November 1960 an international agreement for cooperation in connexion with the safety of air navigation was concluded by several States, inter alia the Member States of the Community except for Denmark and Italy. It set up the European Organization for the Safety of Air Navigation — Eurocontrol — an international organization having a legal personality and its seat in Brussels.

So called route charges are levied on aircraft owners who wish to make use of the air safety services provided by Eurocontrol. The levying of these charges is authorized not only by the clauses of the agreement but also by bilateral and multilateral agreements, in the case of the Federal Republic of Germany by a regulation of the Federal Minister for Transport of 27 October 1971. Paragraph 3 of this regulation prescribes that the charges are payable in Brussels; as far as the rates of the charges, the detailed rules for their application and the procedure for their collection are concerned reference must be made to an order made on 16 June 1971 by the executive organ of Eurocontrol, the agency providing the air safety service.

Relying on these provisions Eurocontrol issued bills for the charges payable for the period from December 1971 to October 1972 to the German air transport undertaking LTU, the appellant in the main action. In these bills there is a clause conferring jurisdiction on the Belgian courts, in the same way moreover as the conditions which regulate payment of the charges for using the services and which constitute Appendix 2 of the Annex to the beforementioned order of 16 June 1971 issued by the Eurocontrol agency mention that the Belgian courts have jurisdiction.

As LTU disputed the validity of the account of charges, Eurocontrol sued in the Tribunal de commerce, Brussels, for part of the amount claimed. This court ordered LTU to pay the charges. In these proceedings it is important to note that the court refused to uphold the plea that the claim for payment of the charges was a matter governed by public law. On the contrary it specifically held that the charges are not to be regarded as taxes and that the determinative factor must be that the payment of the charges is ascribable to operations which must be described as commercial.

It is Eurocontrol's intention to enforce this judgment, which was declared to be provisionally enforceable and in the meantime has become final, in the Federal Republic of Germany, because both the appeal to the Cour d'Appel in Brussels and the appeal on a point of law to the Belgian Cour de Cassation were dismissed. For this purpose it sought on the basis of Article 31 of the Convention on Jurisdiction leave to enforce the judgment and the issue of an order for its enforcement. Eurocontrol produced as proof of service of the judgment in accordance with Article 47 of the Convention on Jurisdiction a certificate of service issued by the Registrar of the Amtsgericht Dusseldorf. By an order of 13 August 1974 leave to enforce the judgment was granted and an order for its enforcement was issued.

However on appeal by LTU to the Oberlandesgericht, Düsseldorf, the 19th Civil Senate of that court by an order of 24 March 1975 set aside the order of 13 August 1974 and dismissed the application for leave to enforce the judgment. The decisive factor for the Oberlandesgericht was that it did not feel able to find that there had been proper service of the judgment of the Tribunal de commerce, Brussels. In the meantime another Civil Senate of the Oberlandesgericht, Dusseldorf, had made an order for the annulment of the certificate of service of the Registrar of the Amtsgericht, Düsseldorf, on the ground that its content — in fact the certificate refers to the service of a statement of claim — was incorrect.

On appeal by Eurocontrol on a point of law to the Bundesgerichtshof that court rejected the view of the Oberlandesgericht, Düsseldorf, on proof of service and pointed out that the effectiveness of the service, for which proof was available, is not invalidated by the setting aside of the certificate of service. The Bundesgerichtshof also declared that the negative order of the Oberlandesgericht, Düsseldorf, could not be upheld on other grounds. The Belgian court, to the jurisdiction of which LTU has submitted, regarded the issue as a commercial matter. This was binding on the court of the State in which enforcement was sought, since the question whether a judgment is to be regarded as having been given in a civil or a commercial matter must be answered in accordance with the law of the State in which the judgment was given. As, however, further findings on the final nature of the Belgian judgment were necessary — its finality had not then been established and, being a question of fact, could not be ascertained by the Bundesgerichtshof itself — the matter was referred back to the Oberlandesgericht, Düsseldorf.

The Oberlandesgericht, Düsseldorf, when it reconsidered the matter, took the view that it could not confine itself to an examination of the only question which in the view of the Bundesgerichtshof was still outstanding but had in addition — apparently because it did not share the view of the Bundesgerichtshof on this point — to go into the question of the proper construction of the expression civil and commercial matters. Consequently by an order of 16 February 1976 it stayed the proceedings and referred the question which I mentioned at the outset to the Court of Justice for a preliminary ruling.

It is perhaps also of interest to note that LTU for its part has brought the matter of Eurocontrol's bills for outstanding charges before the appropriate German administrative court (Verwaltungsgericht). This court however dismissed the application as being inadmissible, because the German courts did not have jurisdiction. The Oberverwaltungsgericht for the Land of North Rhine-Westphalia in its judgment of 7 July 1975 on the appeal against the judgment of the Verwaltungsgericht held that the action for annulment was inadmissible, because the bills for the charges payable to Eurocontrol were not administrative measures capable of being challenged under German law. No decision has apparently yet been made as to the alternative application for a declaration that the charges are not due and owing, and similarly the decision on the appeal on a point of law to the Bundesver-waltungsgericht against the judgment of the Oberverwaltungsgericht is still awaited.

1. Let me preface my opinion on this case with two preliminary observations.

2. The question referred by the Oberlandesgericht, Dusseldorf, which I will now deal with, relates — as I have already said — to the field of application of the Convention on Jurisdiction. In this connexion problems arise because its scope — if the matters to which it does not apply, which are specifically mentioned in the second paragraph of Article 1 of the Convention are disregarded — is simply defined by use of the expression civil and commercial matters, without there being any indication of the way in which this expression is to be interpreted.

3. In view of the foregoing I suggest that the question referred by the Oberlandsgericht, Dusseldorf, be answered as follows:

1 Translated from the German.