JUDGMENT OF 30. 11. 1976 — CASE 42/76 DE WOLF v COX

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

THE COURT composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

First paragraph of Article 26

II — Written observations submitted to the Court

Law

Costs

I —. Facts and procedure

1. By judgment in default of the juge de paix of the First Canton of Turnhout of 28 May 1974, the Harry Cox B.V. undertaking (hereinafter referred to as Cox) was ordered to pay De Wolf FL 23-30 on an invoice of 24 April 1973 and the costs of service of formal notice to pay by authorized process server, 500 Belgian francs damages by way of penalty, legal interest on the abovementioned sums, and, finally, 913 Belgian francs in respect of the costs of the action.

2. A — On 7 May 1976, the Hoge Raad decided to submit the following question to the Court: Does Article 31 of the Convention …, by itself or in conjunction with other provisions of that Convention, prevent a plaintiff who has obtained a judgment in his favour in a Contracting State, being a judgment for which an order for enforcement within the meaning of Article 31 of the Convention may issue in another Contracting State, from making an application to a court in that other State, in accordance with Article 26 of the Convention, for a judgment against the other party on the same terms as the judgment delivered in the first State, instead of applying for the issue of such an order for enforcement in that other State, assuming, of course, that under the provisions of the Convention that court has jurisdiction to hear the application? In the statement of reasons for this decision, it is stated that the relevance of the question referred becomes particularly apparent in cases of small personal claims. In the Netherlands, these claims may be brought before the Kantonrechter without the assistance of an advocate when they do not exceed the sum of Fl 1500, and no appeal is possible when they do not exceed the sum of Fl 500. These factors do not apply where the procedure for the issue of an order for enforcement for which the Convention provides must be followed. B — The order making the reference was entered in the Court Register on 14 May 1976. In accordance with the provisions of Article 5 (1) of the Protocol concerning the interpretation by the Court of Justice of the Convention in conjunction with those of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Government of the Federal Republic of Germany and by the Commission of the European Communities. After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

II —. Written observations submitted to the Court

1. The Government of the Federal Republic of Germany states, inter alia, the following:

2. The Commission puts forward inter alia the following considerations:

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.

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: