JUDGMENT OF 31. 2. 1982 — CASE 25/81 V. v H.

In Case 25/81 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 Hoge Raad der Nederlanden [Supreme Court of the Netherlands] for a preliminary ruling in the action pending before that court between

THE COURT composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grėvisse, Judges, Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Observations submitted pursuant to Article 20 of the Statute of the Court of Justice

III — Answers to the questions asked by the Court

IV — Oral procedure

Decision

The first and second questions

The third question

The fourth question

Costs

I —. Facts and written procedure

(a). Does the exclusion of wills and succession from the application of the Convention, provided for by the opening words of the second paragraph of Article 1 and subparagraph (1) thereof, apply to applications by the person making a codicil held by another person for the delivery up of that codicil, the destruction of photocopies, transcripts and reproductions thereof, and an injunction against holding or using (or causing to be held or used) any photocopy, transcript or reproduction of that document for the purpose of preventing the declarations contained in the codicil from being used against the person making the codicil as evidence in a legal dispute which does not relate to a will or succession?

(b). Does the exclusion of rights in property arising out of a matrimonial relationship from the application of the Convention, provided for by the opening words of the second paragraph of Article 1 and subparagraph (1) thereof, apply to applications as described in (a) above if they are made in order to prevent the declarations contained in the codicil from being used against the person making the codicil in a legal dispute about alleged unauthorized or improper management by that person of his wife's separate property, where that management must be regarded as being closely connected with proprietary relationships flowing directly from the marriage bond?

(c). Does the concept of provisional, including protective, measures referred to in Article 24 cover the possibility, provided for in the Eighteenth Section of Part 13 of the First Book of the Netherlands Code of Civil Procedure [Wetboek van Burgerlijke Rechtsvordering], of applying for interim relief in interlocutory proceedings? Does the fact that the relief is sought in connection with other proceedings pending in the Netherlands affect the answer?

(d). Must the entering of appearance by the defendant solely in order to contest the jurisdiction of the court, referred to in the second sentence of Article 18, be taken to cover a case where the defendant contests the court's jurisdiction and at the same time challenges in the alternative the substance of the application in case the court decides that it has jurisdiction?

(a). What is the legal nature of a codicil under Netherlands law? Is it deemed to form pan of the will in the law of succession or is it an independent disposition?

(b). In Netherland's legal theory, where the spouses live under joint matrimonial property arrangements does a document which is apparently intended to establish a balance between profit and loss in favour of the wife after the death of one of the parties come under proprietary rights arising out of a matrimonial relationship?

(c). Why should interlocutor) applications for interim relief referred to in the Netherlands Code of Civil Procedure be considered or not be considered to be provisional, including protective, measures within the meaning of Article 24 of the Convention?.

II —. Observations submitted pursuant to Article 20 of the Statute of the Court of Justice

1. The Commission takes the view in its observations that as far as the first question is concerned the exclusion of wills and succession does not arise in this case. It argues in particular that neither the nature nor the intended use of the document entitled Codicil enable that document to be considered as expressing a last will and, in any event, the nature of the document in question is not crucial for the purpose of answering the first question. The succession aspect should be left in the background rather than brought to the fore especially since it is not the main subject-matter of the dispute and in any case no question of succession can arise until somebody dies.

2. The respondent, Mr H., contends that the first question should be answered in the affirmative as he believes that the dispute is essentially over a will. In his opinion the word codicil may be taken to mean a will and the crucial fact in this matter is that the legal character indicated by the person making it is determinative in regard to the outcome of the dispute.

3. The Italian Government makes obsenations only on the fourth question asked by the Hoge Raad concerning the second sentence of Article 18 of the Convention.

III —. Answers to the questions asked by the Court

1. In reply to the first question the Commission states that what in common parlance is called a codicil is governed by Article 982 of the Netherlands Civil Code in the pan concerning the form of last wills which contains provisions as to the form of wills in general. Strictlyspeaking a codicil is not treated as pan of the will but as a testamentary disposition. The Commission refers to Article 922 of the Civil Code which provides that a testament or last will is a document wherein is stated what a person wishes to happen after his death and which may be revoked by that person.

2. The Netherlands Government, in answer to the first question, states that Article 982 of the Netherlands Civil Code contained in the Fourth Section (on the form of wills) of Part 12 (Wills) of Book III of that Code provides for the possibility of making a codicil. That article reads as follows:

3. As regards the first question, the respondent in the main action, Mr H., observes that the word codicil does not appear in Dutch legislation. In Netherlands legal terminology it means the document referred to in Article 982 of the Netherlands Civil Code. He states with reference to that article and the position it occupies in that Code that a codicil is a specific kind of last will. He invokes academic opinion according to which the rules on testamentary capacity or succession and those relating to revocation or invalidity of wills are likewise applicable to these dispositions.

IV —. Oral procedure

1. By judgment dated 6 February 1981 which was received at the Court on 17 March 1981 the Hoge Raad der Nederlanden [Supreme Court of the Netherlands] referred to the Court for a preliminary ruling 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 (hereinafter referred to as the Convention) four questions as to the interpretation of Anieles 1,18 and 24 of that Convention.

2. Those questions were raised in the context of proceedings between a married couple of Netherlands nationality domiciled in Belgium concerning the husband's management of his wife's separate property. Because the wife wished to produce in evidence a document drawn up by the husband marked codicil the terms of which were intended to exempt the wife's separate property from the liabilities resulting from his management of that property, the husband made an application to the President of the Arrondissementsrechtbank [District Court], Rotterdam, for an order requiring the document to be returned to him and an injunction against its being used as evidence.

3. The jurisdiction of the President of the Arrondissementsrechtbank to order delivery up of the document was challenged and the case was brought before the Gerechtshof [Regional Court of Appeal], The Hague, and then before the Hoge Raad which decided that an interpretation of the Convention was needed to resolve the dispute and referred the following questions to the Court:

4. The issue raised by the first and second questions is whether an application for a provisional measure for the return of a document marked codicil which is likely to be used as evidence in an action relating to a husband's management of his wife's separate property should be excluded from the scope of the Convention in accordance with the second paragraph of Article 1 thereof because it is related to either wills and succession or rights in property arising out of a matrimonial relationship.

5. The second question, relating to rights in property arising out of a matrimonial relationship within the meaning of Article 1 of the Convention, should be examined first.

6. As the Coun held in its judgment of 27 March 1979 in Case 143/78 de Cavei [1979] ECR 1055 that term includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any proprietary relationships resulting directly from the matrimonial relationship or the dissolution thereof.

7. By its very wording the second question has in view a case in which the management of the wife's property in question must be considered as being closely connected with the proprietary relationship between the spouses flowing directly from their marriage bond.

8. Therefore an application for provisional measures to secure the delivery up of a document in order to prevent the statements which it contains from being used as evidence in an action concerning the management of the wife's property must also be considered to be connected with rights in property arising out of a matrimonial relationship within the meaning of the Convention because of its ancillary nature.

9. Therefore the answer to the second question must be that an application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an action concerning a husband's management of his wife's property does not fall within the scope of the Convention if such management is closely connected with the proprietary relationship resulting directly from the marriage bond.

10. In view of that answer there is no need to reply to the first question.

11. The foregoing conclusion is not affected by Article 24 of the Convention which states that: Application may be made to the courts of a contracting State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another contracting State have jurisdiction as to the substance of the matter.

12. That provision in fact has in view cases in which provisional measures are ordered in a contracting State where under this Convention a court of another contracting State has jurisdiction as to the substance of the matter. Therefore it may not be relied on to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded from it. That is how the third question must be answered.

13. As to the fourth question, it suffices to recall that in its judgments of 24 June 1981 in Case 150/80 Elefanten Schuh GmbH [1981] ECR 1671 and of 22 October 1981 in Case 27/81 Rohr[1981] ECR 2431 the Court held that Article 18 of the Convention must be interpreted as meaning that it allows the defendant not only to contest the jurisdiction but to submit at the same time in the alternative a defence on the substance of the action without however losing his right to raise an objection of lack of jurisdiction.

14. The costs incurred by the government of the Italian Republic and the Commission of the European Communities which have submitted observations to the Court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the question submitted to it by the Hoge Raad der Nederlanden by judgment of 6 February 1981, hereby rules:

1 An application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an action concerning a husband's management of his wife's property does not fall within the scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters if such management is closely connected with the proprietary relationship resulting directly from the marriage bond.

2 Article 24 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters may not be relied on to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded from it.

3 Article 18 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that it allows the defendant not only to contest the jurisdiction but to submit at the same time in the alternative a defence on the substance of the action without however losing the right to raise an objection of lack of jurisdiction.