JUDGMENT OF 22. 2. 1979 — CASE 133/78 GOURDAIN v NADLER

In Case 133/78 REFERENCE to the Court under the Protocol of 3 June 1971 on 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 by the Bundesgerichtshof [Federal Court of Justice] for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Written observations of the syndic, Mr Gourdain, the appellant in the main action

B — Written observations of Mr Nadler, the respondent in the main action

C — Written observations of the Commission

D — Written observations of the Government of the Federal Republic of Germany

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Written observations of the syndic, Mr Gourdain, the appellant in the main action

B —. Written observations of Mr Nadler, the respondent in the main action

(a). relating to the assets of a legal person which are made in proceedings for the liquidation des biens of a company or from which such proceedings must be inferred,

(b). which are directed against de jure or de facto parts of the legal person and

(c). the purpose of which is to add some funds to the assets of the company with a view to the pro rata repayment of the creditors without

(d). the obligation to make a contribution being founded on provisions other than the rules applicable to the liquidation des biens,

C —. Written observations of the Commission

D —. Written observations of the Government of the Federal Republic of Germany

III —. Oral procedure

1. By an order of 22 May 1978 which was received at the Court Registry on 12 June 1978 the Bundesgerichtshof [Federal Court of Justice], pursuant to the Protocol of 3 June 1971 on the interpretation of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as the Convention), referred to the Court of Justice for a preliminary ruling a question on the interpretation of subparagraph 2 of the second paragraph of Article 1 which provides that the Convention shall not apply to bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings.

2. This question has been referred to the Court following an order by the Cour d'Appel, Paris, dated 15 March 1976, which ordered the de facto manager of a French company, in respect of which there had been a previous declaration that the conditions existed for a liquidation des biens, to bear a part of the company's debts pursuant to Article 99 of the French Law No 67-563 of 13 July 1967 on the règlement judiciare, the liquidation des biens, the faillite personnelle and banqueroutes. The syndic of the said company has applied for leave to enforce the order in the Federal Republic of Germany submitting that it relates to a special case concerning civil liability which falls within the field of application of the first paragraph of Article 1 of the Convention.

3. The Convention, the particular aim of which is to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts and tribunals and to strengthen in the Community the legal protection of persons who are established there has laid down as a matter of principle that its scope includes civil and commercial matters without however defining this expression.

4. As far as concerns bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings, according to the various laws of the Contracting Parties relating to debtors who have declared themselves unable to meet their liabilities, insolvency or the collapse of the debtor's creditworthiness, which involve the intervention of the courts culminating in the compulsory liquidation des biens in the interest of the general body of creditors of the person, firm or company, or at least in supervision by the courts, it is necessary, if decisions relating to bankruptcy and winding-up are to be excluded from the scope of the Convention, that they must derive directly from the bankruptcy or winding-up and be closely connected with the proceedings for the liquidation des biens or the règlement judiciaire.

5. The application under Article 99, called an application to make good a deficiency in the assets, for which special provision is made in a law on bankruptcy and winding-up is made only to the court which made the order for the règlement judiciaire or the liquidation des biens.

6. It is quite apparent from all these findings that the legal foundation of Article 99, the object of which, in the event of the winding-up of a commercial company, is to go beyond the legal person and proceed against its managers and their property is based solely on the provisions of the law of bankruptcy and winding-up as interpreted for the purpose of the Convention.

7. The costs incurred by the Commission of the European Communities and by the Government of the Federal Republic of Germany, which have submitted observations pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, are not recoverable.

On those grounds, THE COURT, in answer to the question referred to it by the Bundesgerichtshof by an order of 22 May 1978, hereby rules:

1 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 arc not identical.

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 arc 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 arc 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 arc 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 arc not identical.

6 See Note 1, p. 735.

7 See Note 1, p. 735.

8 See Note 1, p. 735.

9 See Note 1, p. 735.