Opinion of Mr Advocate General Capotorti

1. This reference for a preliminary ruling raises a problem concerning the interpretation of Article 18 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Brussels on 27 September 1968. The same problem was recently encountered by the Court of Justice within the framework of another case of the same nature: the reference for a preliminary ruling in Case 150/80, Elefanten Schuh, in which judgment was given on 24 June 1981. I shall accordingly be able to deal with the matter very briefly.

2. The provisions of Article 18 of the Brussels Convention are as follows:

3. In stating the reasons on which the judgment making the reference is based the French court properly points out that the interpretation of Article 18 is decisive in resolving the problem raised by Rohr in connection with the enforcement of the German judgment: namely whether or not recognition of that judgment is precluded by the fact that it is contrary to the public policy in the State in which recognition is sought (Article 27 (1) of the Brussels Convention). We have seen that the objection concerning public policy is based, according to Rohr, on an interpretation of Article 18 whereby that provision precludes a defence concerning substance of the case (thereby violating, it is said, the principle that the rights of the defence must be respected); accordingly, the rejection as such of that interpretation means that there is no basis for holding the said Article 27 (1) applicable to this case. In fact, it is Rohr which has misinterpreted Article 18 of the Convention and certainly not the German courts; it is clear that an error as to procedure committed by Rohr cannot and may not prevent recognition of the judgment against it.

4. I accordingly suggest that the Court should rule, in reply to the reference for a preliminary ruling made to it by the Cour d'Appel, Versailles, by judgment of 26 November 1980, that Article 18 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters permits a defendant who contests the jurisdiction of the court before which the plaintiff has brought proceedings to submit at the same time in the alternative a defence on the substance of the action.

1 Translated from the Italian.