Opinion of Mr Advocate-General Reischl

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 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:

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.

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.

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.

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.

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.

IV —. I therefore conclude that the following reply should be given to the questions referred for a preliminary ruling:

1 Translated from the German.