OPINION OF MR MAYRAS — CASE 22/80 BOUSSAC v GERSTENMEIER

Mr President,

Members of the Court,

In the instant reference for a preliminary ruling the main action arises out of the sale by the Boussac Saint-Frères company, the large French textile manufacturer, of its products to its customer Mrs Gerstenmeier, the owner of a retail clothing business in Germany. Since Mrs Gerstenmeier had not paid her bill, which was made out in French francs, in full the creditor company commenced summary proceedings [Mahnverfahren] in the Amtsgericht [Local Court] Berlin-Schöneberg, the court having jurisdiction, for an order to pay.

The court before which those summary proceedings were brought was unable, as the plaintiff wished, to order Mrs Gerstenmeier to pay the outstanding balance, that is, an amount expressed in foreign currency. In fact Article 688 (1) of the Zivilprozessordnung (ZPO — Code of Civil Procedure) restricts the admissibility of such proceedings to payment of a sum expressed in national currency, at least where the debtor is not established in one of the Contracting States parties to the Brussels Convention of 27 September 1968 other than the Federal Republic. The Amtsgericht Berlin-Schöneberg preferred to stay the proceedings and, after having explained that this restriction was introduced by a Law of 3 December 1976, which entered into force on 1 July 1977, referred to the Court for a preliminary ruling pursuant to the second paragraph of Article 177, the question whether that amendment to the German Code of Civil Procedure in relation to creditors from other Member States of the European Economic Community is a discriminatory measure and thus ineffective in relation to such claimants as being contrary to Article 7 of the Treaty establishing the European Economic Community, with the result that they may continue to prosecute claims in a foreign currency against debtors established in the Federal Republic of Germany by means of summary proceedings for recovery.

Since the Court is not empowered under Article 177 to interpret and, a fortiori, to express an opinion on a provision of national law I take the liberty of redrafting the question referred in the following terms:

Must Article 7 of the EEC Treaty be understood as meaning that a national provision which does not permit creditors claiming against debtors residing in the Member State which introduced the said provision, in cases where the debts are expressed in foreign currency, to use a simplified procedure for obtaining orders to pay is a measure which discriminates on grounds of nationality?

I — Since an appropriate answer to that question presupposes a good knowledge of the Mahnverfahren, I will begin with a description of it.

Proceedings for obtaining an order to pay, the rules of which are contained in Articles 668 to 703 (d) of the Code of Civil Procedure, are special summary proceedings by way of an exception to the normal legal proceedings (Klageverfahren), the rules whereof are found in Article 253 et seq. of the same Code.

(a). Limited since their introduction in 1877 to certain claims relating to property rights they are used much more than ordinary proceedings for the recovery of cash debts, especially where the debtor does not seriously dispute the debt. Summary proceedings for obtaining an order to pay are particularly well-adapted to simple claims (Ansprüche) to which there is no defence, a great many of which arise out of current legal relations and for this reason may be classified under a limited number of types of contract. I have also learnt that the most frequent users of such proceedings are undertakings which deal direct with the ultimate consumers, such as mail order firms.

(b). This description applies to the rules in their present form which, as far as they affect this case, have been amended twice since they originally entered into force.

(c). What were the reasons for the 1976 reform? The German Government has explained to the Court that it was introduced with the aim of impoving the protection of the party being sued and rationalizing the work carried out by the courts. In particular, the Law made feasible the mechanical processing of cases, with a view to permitting the use of computerization. But the inquiry prior to the legislative work showed that to include debts expressed in foreign currency in a system for the data-processing of summary proceedings for obtaining an order to pay would entail a considerable enlargement of the programme for verification (software) of the claim, which is already highly complicated. This factor, which must be set against the very small number of claims of this type which are in fact made, led to the text which is criticized of Article 688 (1) of the Code of Civil Procedure (ZPO), which was drafted as follows :

(d). The German Government also added that the restriction of the field of application of Article 688 (1) was not the only modification brought about by the technical requirements of computerization. The most important appear to me to be the exclusive jurisdiction of the claimant's court — which makes it possible for claims from large undertakings to be centralized —, the right conferred upon the Länder to centralize claims in a single local court, and especially the abandonment of any examination of the substance of the claim, which I have reason to believe was the object of the strongest criticisms of the 1976 reform.

(e). The isolated position of the German rules is all the more remarkable because, as we shall see shortly, the reasons put forward to justify the different treatment of claims according to the currency in which they are expressed are not, when all the factors have been considered, relevant.

II — Before considering this point I must mention that, although that provision is the only one referred to in the question asked by the Amtsgericht, the plaintiff in the main action has also relied during the present proceedings on two other rules of Community law.

Thus it has mentioned infringement of Article 106 (1) of the Treaty, which lays down the principle of the freedom of intra-Community payments. However, although in its written observations it pointed out that it was unnecessary to consider whether (that article) was a sufficient basis either alone or in conjuction with Article 7, for an application against the measure adopted, at the oral hearing its representative expressed his conviction that Article 106 gave expression to the general prohibition of discrimination contained in Article 7, in the same way as the provisions relating to freedom of establishment or freedom to provide services. For that reason I shall not consider the argument concerning Article 106 (1) independently of the alleged infringement of Article 7.

I shall only therefore consider separately the second rule of Community law of which the plaintiff alleges that there has been a breach, in addition to the infringement of Article 7, and which it called the general principle of Rückschrittsverbot (the prohibition on the imposition of restrictions on a liberal system which is already in existence) in its written observations and, in accordance with terminology with which the Court is more familiar, the standstill principle during the hearing.

I will begin by considering Article 7.

(a). The first paragraph of this Article, as the Court is aware, reads as follows:

(b). There remains the crucial question of discrimination on grounds of nationality.

(c). In the Commission's view the possibility cannot be ruled out, as a matter of principle, that currency may be a discriminatory criterion, but such does not appear to be the case here. In its opinion, the question whether national or foreign currency is involved is a neutral criterion which affects Germans as well as foreigners. Thus the subsidiary of a German company which is established in France and carries on business there can no more take advantage of the summary proceedings for obtaining an order to pay in order to recover a debt expressed in French francs than an ordinary French plaintiff.. As a matter of fact I do not share this view and the example given does not seem to be particularly well chosen: the French subsidiary of a German company is a company incorporated under French law; it is only to be expected that the German legislature should treat it on the same footing as any other company of this kind.

(d). On the other hand, does not the law which is criticized draw a discriminatory distinction between debts expressed in foreign currency by allowing a claim for a summary order to pay only if the debtor resides in a Contracting State party to the Convention of 27 September 1968?

(e). With regard to indirect and covert discrimination it seems to me in fact that account must also be taken of the practical effects of the rules which are criticized. As the Court file containing the written procedure and the submissions made during the oral procedure indicates, and subject to the court making the reference having correctly stated the relevant German law, these effects appear to be negligible.

(f). In those circumstances the view can no longer be taken that Article 106 (1) of the Treaty has been infringed. That article, the aim of [which] is to ensure that the necessary monetary transfers may be made ... for the free movement of goods (paragraph 24 of the judgment of 23 November 1978 in Case 7/78, Regina v Thompson [1978] ECR at p. 2274), and which imposes on Member States the obligation to allow payment for goods sold to be made in the currency of the Member State where the exporter resides, is in fact, as the plaintiff in the main action has itself indicated, the expression in a specific field of the general principle prohibiting discrimination contained in Article 7.

III — The plaintiff in the main action has not during the oral procedure expatiated upon the third principle of Community law, breach of which it has pleaded during the present proceedings and which I will merely call for the sake of simplicity the standstill principle.

Whatever the reasons for this brevity may be, it must above all be noted that an argument based on the alleged breach of a possible standstill principle is no answer to the question from the court making the reference which mentions Article 7 as the sole Community law provision alleged to be infringed by the amendment to the summary proceedings for obtaining an order to pay.

It seems to me that the Court has already answered the question whether, in the context of the procedure for obtaining a preliminary ruling under Article 177, it may consider arguments based on an alleged breach of rules of Community law where the court making the reference has not requested the Court to interpret or determine the validity of those rules. In paragraph 31 of its judgment of 18 June 1975 in Case 94/74, Industria Gomma Articoli Vari, IGAV v Ente Nazionale per la Cellulosa e per la Carta ENCC [1975] ECR at p. 712, the Court held that despite the reference made by the national court (the Pretore of Abbiategrasso) in its order referring the matter to the principle of the free movement of goods, to the objective of merger of the different national markets into a single market and to the elimination of any form of discrimination by the Treaty, there are no questions before the Court of sufficiently precise a nature to enable it to consider the objections raised by the applicant in the main action. Accordingly these arguments must be disregarded in the framework of the present proceedings.

To transpose the solution chosen in the IGA V judgment to this case seems to me to be all the more justified as the order making the reference of the Amtsgericht Berlin-Schöneberg does not even contain any reference of the kind made by the Italian court.

I therefore believe that it would be trespassing on the Court's time to consider an argument relating to a principle which, even if it were assumed to be an established principle and to have been breached, cannot be connected in any way with the prohibition on discrimination laid down by Article 7.

In short, I submit that the Court should answer the question referred to it by the Amtsgericht Berlin-Schöneberg as follows:

Article 7 of the EEC Treaty must be understood as meaning that a national provision which denies access to a simplified procedure for obtaining a summary order to pay to creditors whose claims are expressed in foreign currency and who wish to sue debtors residing in the Member State which enacted the provision in question is not a measure involving covert discrimination on grounds of nationality if they are allowed access to normal legal proceedings, in particular to the accelerated version thereof.

1 Translated from the French.