Opinion of Mr Advocate General Gulmann delivered on 20 February 1992

1 Original language: Danish.

2 [1990] ECR I-27.

3 Sec the Commission's written observations of 28 June 1988 (points 10 and 12) and the French Government's observations of 1 July 1988 (point 8).

4 The Court has taken a decision on the interpretation of Article 16(5) in only one judgment (Case 220/84 AS- Autoteile Servicev Malhe [1985] ECR 2267), which is of no relevance to this case.

5 Mr P. Jenard's Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1979 C 59, pp. 1 to 65).

6 In that connection the Jenartl Report states as follows: Article 24 provides that application may he made to the courts of a Contracting State for such provisional measures, including protective measures, as may be available under the internal law of that State, irrespective of which court has jurisdiction as to the substance of the case. A corresponding provision will be found in nearly all the enforcement conventions. in each State, application may therefore be made to the competent courts for provisional or protective measures to be imposed or suspended, or for rulings on the validity of such measures, without regard to the rules of jurisdiction laid down in the Convention. As regards the measures which may be taken, reference should be made to the internal law of the country concerned.

7 In this connection see the judgments in Case 143/78 De Cavel v De Cavei [1979] ECR 1055 and in Casc 25/81 C. H. W. v G. J. H. [1982] ECR 1189, interpreting Article 24, where, in paragraphs 9 and 12 respectively, the Court emphasizes that that provision relates to cases in which a court of another Contacting State has, under the Convention, jurisdiction as to the substance of the matter.

8 It is irrelevant, for example, in relation to Article 24, that certain French writers, as mentioned by the Commission in the Reichen I case, accept that the action paulienne is a protective remedy since it is a preparation for subsequent possibilities of enforcement by preventing the alienation of assets which may be involved Nor can importance be attached in this respect to the fact that in paragraph 12 of the Reichert I judgment the Court stated that the creditor's action seeks to protect whatever security he may have over the debtor's estate (emphasis added) or that the Cour d'Appel d'Aix-en-Provence, in its reference for a preliminary ruling, asked the Court to take into consideration the existence of protective measures which the decision on the substance of the case is intended to make it possible to enforce against the property which is the subject of the rights in rem transferred by the debtor.

9 Schlosser does not regard the action as covered by Article 5(3), IPRax 1/91, pp. 29 and 30. Tagaras expresses the contrary view in Cahiers de droit européen, 1990, pp. 658 and 687.

10 [1988] ECR 5565.

11 I refer, for a further statement of the reason for which Article 5(3) should be interpreted independently, to Mr Advocate General Darmon's Opinion in that case, referring to Mr Advocate General Warner's Opinion in Case 814/79 Reffer [1980] ECR 3807 at p. 3834 et seq..

12 [1976] ECR 1735.

13 [1980] ECR 3807 at p. 3834 et seq..

14 In footnote 22 of his Opinion he quoted the following observation of Gothot and Holleaux m La Convention de Bruxelles du 27 septembre 1968, ed. Jupiter, 1985, pp. 47 and 48, No 86: ... it is no less probable that the Court will be unable, in a single judgment, to arrive at a comprehensive definition of matters relating to tort, delict or quasi-delict as used in Article 5(3). Even if it is conceded that such a definition is possible — which is doubtful — it would be liable to create fresh difficulties by its excessively abstract nature. ... The Community meaning will therefore in all probability be developed progressively, by subtle analysis and at the price of a period of inevitable uncertainty.

15 There may for example be Member States under whose legal systems an action for compensation by a patient against his doctor for injury arising from treatment may be regarded as an action in tort, delict or quasi-delict, or other Member States in which such an action is regarded as relating to contract.

16 In the original version of the Judgment that paragraph was worded as follows: Um eine einheitliche Lösung in allen Mitgliedstaaten zu gewährleisten, ist davon auszugehen, daß sich der Begriff unerlaubte Handlung auf alle Klagen bezieht, mit denen eine Schadenshaftung des Beklagten geltend gemacht wird, und die nicht an einen Vertrag im Sinne von Artikel 5 Nr. 1 anknüpfen.

17 In the French translation of the judgment the concept is expressed as la responsabilité, and in the English translation as the liability.

18 In this connection Schlosser writes in a commentary on the Reichert I judgment in IPRax 1/91, p. 30: The definition given by the Court in the Kalfelis judgment of unerlaubte Handlungen — actions which seek to establish the liability of a defendant — does not in any event relate to setting a transaction aside (Gläubigeranfechtung). But it is doubtful whether the Court intended to exclude the possibility that the jurisdiction with regard to the unerlaubte Handlung might be used in actions other than actions for damages. However, the position seems to be that in all countries rules for setting a transaction aside are regarded as special rules as compared with those relating to unerlaubte Handlungen. The definition given by the Court of unerlaubte Handlungen may presumably be extended only so as to include actions designed to prevent the occurrence of damage. The definition cannot be extended so as to cover all actions concerning Handlungen unconnected with a breach of contract without giving the jurisdiction in matters of tort, delict or quasi-delict a disproportionately wide scope.

19 [1990] ECR I-49.

20 Cf. also the reference in the Jenard Report to the fact that the background for this special rule of jurisdiction was inter alia the frequency of traffic accidents.

21 As previously mentioned, certain arguments may be adduced to tne effect that it is appropriate for proceedings for the setting aside of a transaction involving real property to be instituted before the court in whose judicial district the property is situated. But those are primarily reasons which may justify jurisdiction relating to rights in rem under Article 16(1). Since the Court was unable to decide in favour of such jurisdiction in the Reichert I case, such grounds cannot be regarded as sufficiently compelling to establish jurisdiction under Article 5(3). In this connection it is particularly relevant to refer to paragraph 13 of the judgment, as follows: Finally, although in certain Member States the rules governing the public registration of rights in immovable property require public notice to be given of legal actions seeking to have transactions affecting such rights avoided or declared ineffective as against third parties and of judgments given in such actions, that fact alone is not enough to justify conferring exclusive jurisdiction on the courts of the Contracting State in which the property affected by those rights is situated. Such rules of national law are based on the need to afford legal protection to the interests of third parties, and such protection can be ensured, if need be, by public notice in the form and at the place prescribed by the law of the Contracting State in which the property is situated. Moreover it is important that an action such as the action paulienne for the setting aside of a transaction may involve both real and personal property. It is difficult at first sight to imagine that Article 5(3) may be differently interpreted according to whether the revocatory action concerns real or personal property. In my view it is clear that it would be inappropriate to accept that such proceedings involving personal property may be instituted according to the rules on jurisdiction contained in Article 5(3), in any case if one were to accept that the harmful event took place where the personal property happened to be at the time of transfer or the time of institution of proceedings, or both.

22 The Court clarified that interpretation in the judgment in Dumez France where it declared that... the rule on jurisdiction laid down in Article 5(3) ... cannot be interpreted as permitting a plaintiff pleading damage which he claims to be the consequence of the harm suffered by other persons who were direct victims of the hirmful act to bring proceedings against the perpetrator of that act in the courts of the place in which he himself ascertained the damage to his assets (paragraph 22).

23 I shall not discuss the question whether an acceptance of jurisdiction under Article 5(3) in an action to set a transaction aside could also lead to an acceptance of the jurisdiction of the court of the State of the applicant's domicile. I shall simply point out that the judgment in Dumez France shows the Court's aversion to solutions which lead to such a result, at any rate in cases in which there is no damage to persons or property.