Opinion of Mr advocate general Reischl

Mr President,

Members of the Court,

In March 1974 proceedings were begun for the winding-up of the French limited liability company Fromme France Manutention, Paris, after the German parent company had become insolvent. The applicant and appellant on a point of law in the main proceedings, in which the present request for a preliminary ruling originated, was appointed syndic [liquidator or trustee for the creditors]. Since the assets of the French company were not sufficient to pay its debts, in June 1974, on application by the syndic, the defendant and respondent on a point of law in the main action, who had been managing director of the German parent company and — apparently since 1971 — also managing director of the French company, was as de facto manager of the French company made a party to the proceedings for the winding-up of that company. This was done pursuant to French Law No 67-753 of 13 July 1967 on the règlement judicaire [administration of the affairs of an insolvent person, firm or company expected to continue in business under the supervision of the court], the liquidation des biens [the winding-up of an insolvent person, firm or company not expected to continue in business], the faillite personnelle [mandatory or optional deprivation or prohibition by the Court of the exercise of rights required to carry on business when the debtor or manager has been imprudent or dishonest] and banqueroutes [ordinary and criminal bankruptcies], Article 99 whereof reads:

[If the règlement judiciaire or the liquidation des biens of a legal person discloses that the assets are insufficient the court may on the application of the syndic or even if its own motion order that the debts of the company shall be borne in whole or in pan, with or without joint and several liability, by some or all of the de jure or de facto managers, apparent or concealed, paid or unpaid, of the company.

The right to make such an application is barred on the expiration of the period of three years from the date when the final list of claims is drawn up. If the scheme of arrangement is terminated or declared void the period of limitation suspended for the duration of any scheme of arrangement begins to run again. Nevertheless the syndic is allowed a further period, which may under no circumstances be less than one year, within which to make his application.

In order to discharge their liability the managers involved must prove that they managed the company's business with the requisite energy and diligence.]

The Commercial Court, Paris, granted the application. The order was partially varied in March 1976 by the Court of Appeal, Paris. Pursuant to the latter's decision the defendant has to pay FF 743563.15 of the liabilities of the French company amounting to FF 859575.39 which are not covered by the assets, and also to bear the costs of the appeal, — less a lawyer's charges. The Court of Appeal also confirmed the order of the Commercial Court in so far as it declared, pursuant to Article 108 of the before-mentioned Law No 67-563, that the defendant had lost the right to direct, manage, conduct or supervise a commercial undertaking.

In order to be able to enforce this order, against which an appeal to have it set aside has been lodged, in the Federal Republic of Germany — at any rate in so far as the order for payment against the defendant is concerned — the syndic pursuant to Article 31 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (often referred to as the Convention on jurisdiction and enforcement) applied for leave to have that order enforced there. The judge of the competent court, the President of the First Zivilkammer [Civil Chamber] of the Landgericht [Regional Court] Limburg/Lahn granted this application in April 1977 but ordered that the enforcement might not go further than protective measures, until the creditor produced a certificate that execution could proceed without any restriction and that, so long as the execution might not go further than protective measures, the debtor could effect a stay of execution by giving security in the sum of FF 743563.15.

However on appeal by the defendant this order was set aside by an order of the Oberlandesgericht [Higher Regional Court] Frankfurt of 7 September 1977 and the application for the issue of a writ of execution refused on the ground that the order against the de facto manager of an insolvent company in accordance with the beforementioned French Law is founded on the insolvency of the company and is part and parcel of the winding-up proceedings. Consequently such a matter forms part of bankruptcy or winding-up and does not fall within the scope of the Convention on jurisdiction and enforcement which in Article 1 thereof is defined as follows :

The applicant in the main action considers that this classification is wrong. In his view it is important to note that Article 99 of the French law provides for a special form of liability under civil law and the syndic must bring a civil action against the person or persons liable. He therefore appealed to the Bundesgerichtshof [Federal Court of Justice].

Since the Bundesgerichtshof finds that the interpretation of Article 1 of the Convention on jurisdiction and enforcement which I have quoted is not entirely free from doubt it has, pursuant to Article 3 of the Protocol annexed to this Convention upon which the High Contracting Parties have agreed in connexion with its interpretation, stayed proceedings and referred the following question to the Court for a preliminary ruling:

Is a judgment given by French civil courts on the basis of Article 99 of the French Law No 67-563 of 13 July 1967 against the de facto manager of a legal person for payment into the assets of a company in liquidation to be regarded as having been given in bankruptcy proceedings, proceedings relating to the winding-up of insolvent companies or other legal persons and analogous proceedings (subparagraph 2 of the second paragraph of Article 1 of the Convention) or is such a judgment a decision given in a civil and commercial matter (first paragraph of Article 1 of the Convention) ?

My view on this question is as follows:

1 Translated from the German.

2 Translator's note. The English terms given do not purport to be exact equivalents of the French terms, since concepts in the different legal systems are not identical.

3 Translator's note. The English terms given do not purport to be exact equivalents of the French terms, since concepts in the different legal systems are not identical.

4 Translator's note. The English terms given do not purport to be exact equivalents of the French terms, since concepts in the different legal systems are not identical.

5 Translator's note. The English terms given do not purport to be exact equivalents of the French terms, since concepts in the different legal systems are not identical.

6 Translator's note. The English terms given do not purport to be exact equivalents of the French terms, since concepts in the different legal systems are not identical.

7 Set Note 1, p. 747.