JUDGMENT OF 27. 3. 1979 — CASE 143/78 DE CAVEL v DE CAVEL

In Case 143/78 REFERENCE to the Court in pursuance of 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 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: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Observations under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations of the appellant in the main action

B — Observations of the respondent in the main action

C — Observations of the Federal Republic of Germany

D — Observations of the Government of the United Kingdom

E — Observations of the Commission

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Observations under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations of the appellant in the main action

—. Judgments delivered in the matter of provisional and protective measures must be viewed intrinsically and severed from any lawsuit as to the substance of the matter and hence recognized within the meaning of the Community Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

—. Provisional or protective judicial measures concerning the proprietary interests of the parties fall within the field of application of the Convention even when such orders and judicial measures are adopted prior to divorce proceedings.

B —. Observations of the respondent in the main action

C —. Observations of the Federal Republic of Germany

1. Proceedings relative to provisional measures in matrimonial matters are not excluded from the sphere of application of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by reason of the fact that they are proceedings ancillary to actions relating to the status of persons or rights in property arising out of a matrimonial relationship.

2. The Convention may be applicable to the placing under seal and freezing of assets ordered by the judge in family matters in the course of divorce proceedings to the extent to which it is (also) necessary to protect maintenance obligations; it is not applicable if the purpose is solely to protect claims to matrimonial property.

D —. Observations of the Government of the United Kingdom

E —. Observations of the Commission

(a). If the Contracting States had had the intention of excluding generally from the sphere of application of the Convention all special proprietary relationships between spouses it would easily have been possible to express this clearly by a sufficiently broad wording as in subparagraph (1) of the second paragraph of Article 1 of The Hague Convention of 17 March 1969 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.

(b). It follows from Article 5 (2) of the Convention, on the subject of maintenance, that proprietary relationships between spouses are not in principle excluded from the sphere of application of the Convention.

1. In pursuance of subparagraph (1) of the second paragraph of Article 1 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, provisional measures adopted in the framework or divorce proceedings are not excluded from the field of application of the Convention when they do not directly concern one of the excluded matters enumerated in the said subparagraph.

2. The decision to seal and freeze assets of the defendant, adopted by the French judge of family matters within the context of pending divorce proceedings does not relate to the excluded matters status of persons and rights in property arising out of a matrimonial relationship referred to in subparagraph (1) of the second paragraph of Article 1 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matt

III —. Oral procedure

1. By an order of 22 May 1978, which was received at the Court on 19 June 1978, the Bundesgerichtshof referred to the Court of Justice for a preliminary ruling pursuant to 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 (hereinafter referred to as the Convention) a question relating to the interpretation of subparagraph (1) of the second paragraph of Article 1 of the Convention which excludes from the scope of the Convention the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession.

2. The question was raised in the context of a dispute concerning the enforcement in the Federal Republic of Germany of an order made on 19 January 1977 by the judge of family matters at the Tribunal de Grande Instance, Paris, authorizing, as a protective measure in divorce proceedings pending between the parties, the putting under seal of furniture, effects and other objects in the flat at Frankfurt-am-Main belonging to the parties and the freezing of the assets and accounts of the respondent at two banking establishments in that city.

3. The case was then brought before the Bundesgerichtshof which referred to the Court of Justice the following question:

4. The Commission and the appellant argue that the answer should be given that the proceedings referred to fall within the scope of the Convention, while the Governments of the United Kingdom and of the Federal Republic of Germany and the respondent contend that the answer should be that the Convention is inapplicable.

5. It appears from the file on the case that the matters in dispute before the German courts concern, on the one hand, the connexion between the measures ordered by the French judge of family matters and the divorce proceedings and, on the other, the question whether the Convention is applicable in view of the proprietary nature of the protective measures in question.

6. In the words of Article 1, the Convention is to apply in civil and commercial matters.

7. The enforced settlement on a provisional basis of proprietary legal relationships between spouses in the course of proceedings for divorce is closely linked to the grounds for the divorce and the personal situation of the spouses or any children of the marriage and is, for that reason, inseparable from questions relating to the status of persons raised by the dissolution of the matrimonial relationship and from the settlement of rights in property arising out of the matrimonial relationship.

8. The foregoing considerations are applicable to measures relating to the property of spouses whether they are provisional or definitive in nature.

9. Furthermore, in relation to the matters covered by the Convention, no legal basis is to be found therein for drawing a distinction between provisional and definitive measures.

10. It may therefore be concluded that judicial decisions authorizing provisional protective measures — such as the placing under seal or the freezing of the assets of the spouses — in the course of proceedings for divorce do not fall within the scope of the Convention as defined in Article 1 thereof if those measures concern or are closely connected with either questions of the status of the persons involved in the divorce proceedings or proprietary legal relations resulting directly from the matrimonial relationship or the dissolution thereof.

11. The costs incurred by the Government of the United Kingdom, the Government of the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

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