OPINION OF ADVOCATE GENERAL LÉGER delivered on 8 June 1995 *

Transcription

1 SISRO ν AMPERSAND OPINION OF ADVOCATE GENERAL LÉGER delivered on 8 June 1995 * 1. The Court of Appeal asks the Court of Justice, pursuant to Article 3 of the Protocol of 3 June 1971, 1 for a preliminary ruling on the interpretation of Articles 36, 37 and 38 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 2 as amended by the Accession Convention of 9 October (hereinafter 'the Convention'), in the context of an 'appeal on a point of law' (or an 'appeal in cassation', to use the terms of the Convention) brought by a party against whom the enforcement in England of a French judgment has been authorized. Convention rules by the courts concerned. I shall examine the course of the proceedings after noting the provisions of the Convention which are relevant in this case. The enforcement procedure established by the Convention 2. When the authors of the Convention, in accordance with the objective set out in Article 220 of the EEC Treaty, established a simplified machinery for the recognition and enforcement of judgments, their first priority was to speed up procedures. The procedural complexity which has come about in the present case might cast doubt on whether such an objective has been achieved, were it not due in part to the poor application of the * Original language: French. 1 OJ 1975 L 204, p OJ 1978 L 304, p Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, OJ 1978 L 304, p. 1 and (text of the 1968 Convention as amended) p The Convention sets up a unified system for determining jurisdiction (Title II), together with a simplified machinery for the recognition and enforcement of the judgments of the courts of the Contracting States (Title III) within the field covered by the Convention (Title I). Title III ('Recognition and Enforcement') seeks to ensure 'the free movement of judgments' 4 by facilitating the recognition (Section 1) and enforcement (Section 2) of foreign judgments. Section 2 (Articles 31 to 45) thus provides for a summary enforcement procedure with the following characteristics. 4 Judgment in Case 145/86 Hoffmann v Krieg [1988] ECR 645, at p. 666; Report on the Convention of 27 September 1968 ('the Jenard Report'), OJ 1979 C 59, p. 1, at p. 42. I

2 OPINION OF MR LEGER CASE C-432/93 4. The first stage of the procedure is ex parte. 5 It starts with the lodging of an application by any interested party for the enforceable judgment given in the State of origin to be declared enforceable or, in the United Kingdom, to be 'registered for enforcement' 6 in the State in which recognition is sought (Article 31). The application is submitted to the court specified in Article 32, 7 which gives its decision without being able to review the foreign judgment as to its substance (Article 34). The court can give only two kinds of decision: either to authorize enforcement or to refuse it. It can refuse enforcement only for one of the reasons set out in Articles 27 and 28 8 or for failure to take into account the requirements of Articles 31 (enforceability of the judgment in the State of origin), 32 and 33 (designated courts and formal rules) of the Convention. If the application is thus refused, the applicant can appeal (Article 40 et seq.). prescribed time-limit. 9 At this stage the procedure becomes inter partes. The appeal is heard by the court designated in Article 37(1). 10 Enforcement is not possible during the time allowed for an appeal and until any appeal is determined; the only measures which may be taken by the applicant are protective measures against the property of the person against whom enforcement is sought (Article 39). The court with which the appeal is lodged may decide: 5. If enforcement is authorized, the party against whom it is sought can oppose it by bringing an appeal (Article 36) within the 5 This is to permit the 'element of surprise which is necessary in an enforcement procedure if the respondent is not to have the opportunity of withdrawing his assets from any measure of enforcement' (Jenard Report, p. 50). 6 On the reasons for this peculiarity of the United Kingdom, see the Report on the Convention ('the Schlosser Report ' ), OJ 1979 C 59, p. 71, point In England, the High Court of Justice. 8 Article 27 lists the following reasons: recognition is contrary to public policy in the State in which recognition is sought (Article 27(1)), procedural irregularity in the State of origin such that the rights of the defence have not been respected (Article 27(2)), the judgment is irreconcilable with a judgment given between the same parties in the State in which enforcement is sought (Article 27(3)), failure to observe the rules of private international law of the that State (Article 27(4)), and the judgment is irreconcilable with an earlier judgment given in a non-contracting State capable of recognition in the State in which enforcement is sought involving the same cause of action and between the same parties (Article 27(5)). Article 28 prohibits the recognition of judgments which conflict with theprovisions on jurisdiction in matters relating to insurance (Title II, Section 3), jurisdiction over consumer contracts (Title II, Section 4), exclusive jurisdiction (Title II, Section 5) and conventions with third States (Article 59). to refuse enforcement, on the same grounds as in the initial ex parte stage of the procedure (based on Articles 27 and 28 or Article 31); or to authorize enforcement, thus upholding the decision given on the application. 9 Time runs from the date of service of the decision. The period is in principle one month, but is extended to two months if the party against whom enforcement is sought is domiciled in a Contracting State other than that in which the decision authorizing enforcement has been given; an extension of time on account of distance is not possible. 10 In England, the High Court of Justice. I

3 SISRO ν AMPERSAND Two other possibilities are available to that court, under Article 38: to stay the proceedings (first paragraph of Article 38), subject to two cumulative conditions: the stay must have been applied for by the appellant, and an 'ordinary' appeal must have been brought against the foreign judgment in the State of origin or such an appeal must still be capable of being brought; 11 authorizing or refusing enforcement undoubtedly constitutes such a 'judgment given on the appeal', is that also true of decisions under Article 38 relating to a stay of proceedings or the provision of security? That precisely is one of the questions raised by the national court, in proceedings whose background is as follows. Facts and procedure of the present case to make enforcement conditional on the provision of security (third paragraph of Article 38). 6. The Convention provides, finally, for a possible third stage of the procedure (Article 37(2)). 1 2 Depending on the national legal system, this is an 'appeal in cassation' (for example, in France) or an 'appeal on a point of law' (for example, in the United Kingdom). Such an appeal is, however, available only against 'the judgment given on the appeal'. While the judgment of the court hearing the appeal referred to in Article 37(1) 7. On 8 April 1987 SISRO, a French company established in France, obtained from the Tribunal de Grande Instance, Paris, a provisionally enforceable judgment against Ampersand, a Netherlands company established in the Netherlands, for damages for infringement of its copyright on certain computer programs. 13 Ampersand then appealed against that judgment to the Cour d'appel, Paris; the appeal is still pending, the Cour d'appel having stayed the proceedings pending the outcome of the parallel criminal proceedings On application by SISRO, and in accordance with the Convention rules, the High 11 See H. Gaudcmet-Tallon, 'Les conventions de Bruxelles et Lugano', LGDJ 1993, point The Convention does not specify the competent court in England, but the Civil Jurisdiction and Judgments Act 1982, which integrated the Convention into the United Kingdom legal order, gives jurisdiction for England to the Court of Appeal. 13 The Tribunal dc Grande Instance, Paris, appears to have based its jurisdiction on the special right that may be invoked by French nationals under Article 14 of the Civil Code, although that head of jurisdiction is excluded from the scope of the Convention under the fifth indent of the second paragraph of Article 3 of the Convention. 14 The stay was probably based on the maxim of French law that 'civil proceedings must await the outcome of criminal proceedings'. I

4 OPINION OF MR LEGER CASE C-432/93 Court of Justice on 15 December 1987 authorized 'registration' of the French judgment for enforcement in England, where Ampersand has assets. view of the latest decision of the French appellate court refusing a stay of enforcement of the 1987 judgment, the Court of Appeal authorized SISRO to apply to the High Court to lift the stay of proceedings it had ordered on 18 December Ampersand then brought an appeal against the decision on the application, relying on Article 27(1) of the Convention. That appeal, lodged on 8 April 1988, was in principle inadmissible in view of the rules on time-limits in Article 36. It was nevertheless declared admissible by the High Court of Justice. 11. The High Court, to which the matter had been remitted by the Court of Appeal, gave judgment on 23 January 1992 on two points: On application by Ampersand, the court with which the appeal was lodged stayed the proceedings on 9 October 1989, pending the determination of the appeals brought in France, thus using its power under the first paragraph of Article 38 of the Convention. it lifted the stay of proceedings previously ordered, considering that for reasons of 'comity' 15 it should follow the French court's decision refusing a stay of enforcement of the 1987 judgment 'on the merits'; In France, the Cour d'appel on 11 May and 21 December 1989 dismissed successively two applications by Ampersand for a stay of enforcement of the judgment of the Tribunal de Grande Instance. The French judgment thus remains enforceable and therefore still complies with the requirements of Article 31 of the Convention. it dismissed the appeal by Ampersand against the order of registration (that being a 'judgment given on the appeal' within the meaning of the Convention). 12. Ampersand then brought two appeals to the Court of Appeal, one against the lifting 10. On 9 May 1990 SISRO appealed to the Court of Appeal against the order of 9 October 1989 granting the stay of proceedings. In 15 'Comity' in this context means the general principle that the English courts should respect foreign courts and their judgments (see the order for reference, p. 5). I

5 SISRO ν AMPERSAND of the stay, the other against the dismissal of its appeal against the 'registration' order (note that that court, with which an 'appeal on a point of law' has been lodged, has jurisdiction under Article 37(2) of the Convention to decide on the 'judgment given on the appeal'). 13. The Court of Appeal stayed both appeals, and now refers the following three questions to the Court for a preliminary ruling: (ii) decisive of the way in which the power to stay registration proceedings provided for by Article 38 of the Convention should be exercised? '1. Is an appellant in the United Kingdom who has lodged an appeal under Article 36 of the 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters entitled to seek the relief provided by Article 38, if he is unable to advance successfully one of the reasons specified in Articles 27 and 28 for refusal of an application for registration for enforcement of a judgment given in another Contracting State, and, if so, what are the "proceedings" in respect of which a stay may be ordered? 3. If one of the courts referred to in the first paragraph of Article 37 of the Convention (a) refuses to grant a stay, or (b) removes a stay imposed 2. Is the fact that there has been a refusal of a stay on the enforcement of a judgment in the State where the judgment was given (i) relevant to and/or under Article 36 of the Convention, does the court to which an appeal on a point of law is made under the second paragraph of Article 37 have the power to impose or reimpose such a stay?' I

6 OPINION OF MR LEGER CASE C-432/93 Preliminary observations 17. The question is thus whether the French court founded its jurisdiction on rules which accorded with the provisions of Title II as amended or provisions of a convention binding the two States. 14. In its written observations the Commission expressed doubts as to whether the Court of Justice has jurisdiction in this case. Although its representative withdrew those reservations at the hearing, I consider it useful to remove any ambiguity which might remain on this point. 15. The Commission was uncertain, firstly, as to the application of the Convention ratione temporis. 16. Since the United Kingdom was not one of the original parties to the Brussels Convention, only the version as amended by the 1978 Accession Convention could be applicable as between the two countries at the material time in the present case. That Convention entered into force on 1 November 1986 in France, the State of origin, and 1 January 1987 in the United Kingdom, the State in which enforcement is sought. The transitional provisions in Article 34(3) of the Accession Convention provide that the Convention is to apply to judgments given after the date of entry into force of the Convention in proceedings instituted before that date (as in the present case), if the jurisdiction of the court of the State of origin was founded upon rules which accorded with the provisions of Title II as amended or with provisions of a convention which was in force between the State of origin and the State addressed when the proceedings were instituted. 18. That point was considered by the Paris Cour d'appel in its judgment of 11 May 1989, which held that the French courts had jurisdiction on the basis both of the Berne Convention 16 and of the Brussels Convention. It is therefore not for the Court of Justice, any more than it is for the courts of the State in which enforcement is sought, to review whether the Convention rules were applied correctly by the courts of the State of origin, otherwise the Court would depart from the very basis of the Convention: confidence in the court of the State of origin, which is to permit recognition and easy enforcement of judgments. Moreover, the Court has already endorsed that view, when stating that 'the Court's reply to the question referred to it by the Cour d'appel is without prejudice to the question whether the Convention is in fact applicable [in this case] in view of the terms of Article 54 of the Convention' 17 in the Brasserie du Pêcheur judgment Berne Convention on copyright, binding between France and the United Kingdom since 10 July Article 54 of the Convention, as amended, on transitional provisions, which is substantially the same as Article 34 of the Accession Convention. 18 Case 148/84 Deutsche Genossenschaftsbank v Brasserie du Pêcheur [1985] ECR 1981, paragraph 9. I

7 SISRO ν AMPERSAND 19. Finally, the Commission's observation that if the High Court had not disregarded the time-limits prescribed in Article 36 of the Convention, the case would not have reached the Court of Appeal and the problems raised by the questions referred would not have arisen, is indeed correct, but is not capable of calling into question the principle of the Court's jurisdiction in the present case. The third question 22. Article 37(2) of the Convention reads as follows: 'The judgment given on the appeal may be contested only: 20. Accordingly, I have no doubts as to the applicability of the Convention in this case or as to the jurisdiction of the Court. I shall therefore turn to consideration of the questions raised. in Belgium, France, Italy, Luxembourg and in the Netherlands, by an appeal in cassation, The answers to the questions in the United Kingdom, by a single further appeal on a point of law.' 21. Since the questions are all essentially concerned with the interpretation of Article 38 of the Convention, in so far as it relates to a stay of proceedings, it should first be examined whether the national court, before which an 'appeal on a point of law' has been brought in accordance with Article 37(2), has jurisdiction to rule on such a stay. I shall therefore answer the third question first. 23. In the light of that provision, the question before the Court is thus whether the decision to lift a stay of proceedings previously ordered, taken on the basis of Article 38 of the Convention by the court with which the appeal has been lodged, constitutes a 'judgment given on the appeal', which alone can be contested by an appeal in cassation or similar form of appeal. A negative I

8 OPINION OF MR LEGER CASE C-432/93 answer appears to me to follow both from the reports on the Convention and from the Court's case-law. 25. It thus appears that the authors of the reports favoured a strict interpretation of Articles 37(2) and 38 of the Convention. That is, moreover, how the Court interpreted those provisions in two judgments dealing with questions with a marked similarity to those in the present case. 24. According to the Jenard Report, the aim of the authors of the Convention was to avoid an 'excessive number of avenues of appeal... [which would] constitute an obstacle to the free movement of judgments which is the object of the Convention'. 19 That is why it is provided that 'only the court seised of the appeal has the power to stay the proceedings...'. 2 0 It thus appears, a contrario, that neither the court to which the application is made nor the court before which an appeal in cassation or a similar appeal is brought may order a stay. The Schlosser Report is clearer still. It gives a very precise definition of the nature of the appeal which can be brought before the court specified in Article 37(2): 'The purpose of [the rule in Article 37] is to limit the number of appeals, in the interests of rapid enforcement, to a single appeal which may involve a full review of the facts and a second one limited to points of law'. It also states that only 'the judgment of the court which [has] ruled on an appeal made by either the debtor or the creditor' can be the subject of a second appeal In the Brennero case 22 the Bundesgerichtshof, with which an appeal had been lodged in accordance with Article 37(2), was uncertain whether it had jurisdiction to hear a Rechtsbeschwerde against a decision under the last paragraph of Article 38 ordering security to be provided. The Court interpreted Article 37(2) in view of 'the general scheme of the Convention, and in the light of one of its principal objectives which is to simplify procedures in the State in which enforcement is sought' as meaning that: 'that provision cannot be extended so as to enable an appeal in cassation to be lodged against a judgment other than that given on the appeal, for instance against a preliminary 19 Jenard Report, p. 52, on Article Jenard Report, p. 52, on Article 38. The 'court seised of the appeal' here means the court with which the appeal under Article 37(1) is lodged: see pp. 48 and 51 of the Report. 21 Schlosser Report, point 217, my emphasis. 22 Case 258/83 Brennero ν Wendel [1984] ECR I

9 SISRO ν AMPERSAND or interlocutory order requiring preliminary inquiries to be made'. 23 cassation. The court which made the reference, being the court with which the appeal was lodged under Article 37(2), then asked the Court whether it could, under Article 38, rule on such a decision inter alia refusing a stay. 27. While Advocate General Sir Gordon Slynn had already said in his Opinion that such a 'judgment given on the appeal' must be understood as 'the final decision determining the appeal', 24 the Court still had to define that expression precisely, in order to determine whether it could cover decisions taken under Article 38. The Court addressed the point in the Van Dalfsen judgment, 25 also taking the opportunity to confirm the solution reached in Brennero. The Van Dalfsen case exhibited such similarities to the present case that it is worth recalling. 29. The Court, once again basing itself on the Convention's essential objective of rapidity, adopted a strict interpretation of the phrase 'judgment given on the appeal' and ruled out any possibility of appealing under Article 37(2) of the Convention against decisions taken under Article 38: 28. A Belgian judgment had been declared enforceable in the Netherlands. Mr Van Dalfsen had thereupon appealed against that decision, pursuant to Article 36, and applied for a stay of proceedings on that appeal pending the outcome of the appeal lodged in Belgium. The Netherlands court declared the appeal unfounded, dismissed the application for a stay and ordered security to be provided. 26 Mr Van Dalfsen brought an appeal in 23 Brennero, paragraph Opinion in Brennero, at p Case C-183/90 Van Dalfsen and Others [1991] ECR I In the present case the High Court did not precisely reject an application for a stay, but lifted a stay previously ordered, which effectively comes to the same thing. Nor did it order security to be provided. The two cases thus differ on those points, which are however not decisive for the comparison. '... since the object of the Convention is to facilitate the free movement of judgments by establishing a simple and rapid procedure in the Contracting State in which application is made for the enforcement of a foreign judgment, the expression "judgment given on the appeal" in the second paragraph of Article 37 of the Convention must be interpreted as denoting only judgments deciding on the substance of the appeal lodged against an order for the enforcement of a judgment given in another Contracting State, to the exclusion of judgments given under Article 38 of the Convention' Van Dalfsen, paragraph 21, my emphasis. I

10 OPINION OF MR LEGER CASE C-432/ The answer to the question submitted by the Court of Appeal in the present case must therefore be the same as that given to the Netherlands court in Van Dalfsen. Its wording is sufficiently general for it to be taken as a decision of principle: avenues of appeal might be used by the losing party purely as delaying tactics, and this would constitute an obstacle to the free movement of judgments which is the object of the Convention.' 30 '... a decision taken under Article 38 of the Convention by which the court with which an appeal has been lodged against an order for the enforcement of a judgment given in another Contracting State has refused to stay the proceedings... does not constitute a "judgment given on the appeal" within the meaning of the second paragraph of Article 37 of the Convention and may not, therefore, be contested by an appeal in cassation or similar form of appeal' For that reason I cannot accept the United Kingdom's argument based on the particular nature of its national law. 31. That interpretation must be approved, 29 especially as in the present case the party resisting enforcement of the judgment has as can be seen from the length and complexity of the procedure continually brought application on application, in order, one may fear, to postpone any final decision whether in the State of origin or in the State in which enforcement is sought. If that party were able once more to bring before the Court of Appeal an appeal analogous to an appeal in cassation against a decision to lift a stay of proceedings, that would entirely disregard the warning set out in the following terms in the Jenard Report: 'An excessive number of 33. As justification of an affirmative answer to the third question, the United Kingdom submits that the appeal in cassation provided for in Article 37(2) for five of the original six Contracting States is a different concept from the 'single further appeal on a point of law' in the case of the United Kingdom. If a court hearing an appeal in cassation quashes the judgment of an inferior court, it always has the possibility of remitting the case to another court of the same rank with jurisdiction under Article 37(1) for it to rule on the substance. The latter court could thus again make a ruling under Article 38. That is not possible in the United Kingdom, however, where the superior court (in this case the Court of Appeal) cannot remit the case, but always rules on the substance, and must thus have an opportunity to rule on the stay Viin Dalfsen, paragraph 1 of the operative part, my emphasis. 29 See the commentary on the judgment by H. Gaudemet- Tallon, Revue critique de droit international privé, January- March 1992, p Jenard Report, p Observations of the United Kingdom, point 36 et seq. I

11 34. Admittedly, as Professor Schlosser points out, 'the 1968 Convention implicitly proceeded from a legal background common to the original Member States of the EEC' and 'by contrast the legal systems of the new Member States unmistakably contain certain 32 special structural features'. But the 1978 Accession Convention precisely endeavoured to implement the necessary 33 'adjustments' for the accession of the United Kingdom. Thus it was necessary, for example, to reconsider the distinction drawn in Articles 30 and 38 between ordinary and extraordinary appeals, 34 and the exequatur system, preference being given instead in that State to the system of 'registration'. 35 Similarly, it was stated that the Convention may require normal rules of domestic law not to be applied, as for instance the 'doctrine of 36 the forum conveniens'. SISRO ν AMPERSAND 35. More specifically, as the author of the Report himself admits, 'the adjustment of the second paragraph of Article gave rise to difficulties'. The distinction between points of law and matters of fact familiar to continental legal systems is less clear-cut in the United Kingdom. It was therefore agreed that 'the United Kingdom will have to adapt [its] appeal system to the requirements of the 1968 Convention', in view of the fact that 'the concept of "appeal on a point of law" is the nearest equivalent as far as United Kingdom law is concerned to the "Rechtsbeschwerde" of German law and the appeal in cassation in the legal systems of the other original Member States of the Community, the common feature of which is a restriction of the grounds of appeal to an incorrect application of the law (as opposed to an incorrect assessment of the facts)' Consequently, while the concepts of 'appeal in cassation' and 'appeal on a point of law' are indeed not absolutely identical, it is for the court with which an appeal under Article 37(2) of the Convention is lodged to decide as any other national court would when hearing an appeal in cassation. More precisely, although in the legal system of England and Wales the Court of Appeal normally has to rule on the substance in its capacity as an appellate court, the function of court of cassation assigned it by the Brussels Convention is quite different, and it cannot on that basis have to rule on grounds of appeal not based directly on an incorrect application of the law, such as a stay of proceedings. 37. That is the only solution which ensures that the primacy of the Convention over domestic law is respected, a primacy the Court has justified as follows: 'The principle of legal certainty in the Community legal 32 Schlosser Report, point Article 3(2) of the Act of Accession. 34 Schlosser Report, point 195 et seq. 35 Ibid., point Ibid., points 77 and 78. system and the objectives 37 Ibid., point 217. of the Brussels I-2281

12 OPINION OF MR LEGER CASE C-432/93 Convention in accordance with Article 220 of the EEC Treaty, which is at its origin, require in all Member States a uniform application of the legal concepts and legal classifications developed by the Court in the context of the Brussels Convention.' 38 The Court has explained that in particular Section 2 of Title III as a whole constitutes an autonomous system independent of the various systems of domestic law: '... the Convention established an enforcement procedure which constitutes an autonomous and complete system, including the matter of appeals'. 39 have the effect and the authority it would have had in the State of origin, but cannot have more effect than local judgments of the same type. In the present case the French judgment is enforceable in the State of origin but, without there being a judgment on appeal, it is not res judicata. In practice, that means that the creditor SISRO can take enforcement measures in France, but at its own risk. If it takes such measures in France and the judgment is subsequently overturned, it will have to restore the original position. That must be the same in England. The fact that the Court of Appeal cannot decide on the lifting of a stay of proceedings therefore does not involve the parties in any more risks in England than in France, even if the French judgment were subsequently to be quashed. On the basis of the 'registration' of the French judgment in England, SISRO can take enforcement measures, but at its own risk, just as in France. For that reason the United Kingdom's argument based on the specific nature of its domestic law cannot succeed. 38. I should like to make one final remark on the United Kingdom's argument. As in the case of recognition (Articles 26 to 30) and in accordance with the judgment in 40 Hoffmann, the foreign judgment must 39. I therefore conclude that the Court of Appeal, exercising jurisdiction under Article 37(2) of the Convention, can rule only on challenges relating to incorrect application of the law, and not on appeals against decisions refusing to stay the proceedings or lifting a stay previously ordered. 38 Joined Cases 9/77 and 10/77 Bavaria Fluggesellschaft and Germanair ν Eurocontrol [1977] ECR 1517, paragraph Deutsche Genossenschaftsbank v Brassene du Pêcheur, cited above, paragraph Hoffmann ν Krieg, at p I now turn to the other two questions. I

13 SISRO ν AMPERSAND The first and second questions treated as an ordinary appeal for the purposes of the first paragraph.' 41. Since I consider that the court designated in Article 37(2) of the Convention does not have jurisdiction to rule on a decision relating to a stay of proceedings, examination of the other two questions, which aim essentially to define the scope of the power to stay the proceedings, is purely hypothetical. I therefore make observations on this point only in the alternative, on the understanding that the following remarks are in any event applicable only to the court with jurisdiction under Article 37(1) before which the appeal is brought. The first question 43. By its first question the national court asks whether an appellant can seek a stay of proceedings on the appeal (Article 38) even though he is unable to rely on any of the grounds for refusal of recognition and enforcement of the foreign judgment (Articles 27 and 28). 42. The first and second paragraphs of Article 38 of the Convention read as follows: 44. I consider that the answer must be in the affirmative. 'The court with which the appeal under Article 37(1) is lodged may, on the application of the appellant, stay the proceedings if an ordinary appeal has been lodged against the judgment in the State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged. Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the State of origin shall be 45. I have noted 41 that the party against whom enforcement of a judgment is sought must put forward one of the grounds for refusal listed exhaustively in Articles 27 and 28, for the court hearing the appeal to be able to rule on the substance, under Article 36, that is, refuse enforcement of the foreign judgment in the State in which enforcement is sought. Is it then possible to draw a parallel with that situation and, as the applicant suggests, consider that the party against whom enforcement is sought must similarly put forward one of the grounds for refusal 41 See points 4 and 5 of this Opinion. I

14 OPINION OF MR LEGER CASE C-432/93 listed exhaustively in Articles 27 and 28, for the court hearing the appeal to be able to grant a stay of proceedings, under Article 38} 46. I think not, for at least three reasons. 48. Quite apart from that textual analysis, I think that in any case Article 38 and Article 36 should be clearly differentiated. Those two articles give the court hearing the appeal two independent powers, which can be exercised at different times, and involve the consideration of completely distinct facts and questions. 47. To begin with, it would be vain to seek any textual argument to support SISRO's view. On the contrary, a reading of the Convention confirms my conclusion. Thus the text of Article 38 contains no reference to Articles 27 and 28, unlike the second paragraph of Article 34 (whose link with Article 36 I have pointed out), which provides: 'The application may be refused only for one of the reasons specified in Articles 27 and 28'. I consider that that should not be seen as an oversight on the part of the authors of the Convention, since elsewhere as I have stated 4 2 they took care to make the power to stay the proceedings, provided for in Article 38, subject to two very precise conditions. It thus seems to me that if the authors of the Convention had wished to make the power to stay the proceedings subject to a third condition, such as the existence of a ground for refusing recognition and enforcement, they would have mentioned that in the text of Article 38. That view is confirmed by consulting the reports on the Convention 43 and the Court's caselaw, 44 neither of which supports a presumption of such a requirement. 42 See point 5 of this Opinion, first indent of the third paragraph. 43 Jenard Report, p. 52; Schlosser Report, point 195 et seq. 44 See the judgments relating to Article 38 of the Convention: Case 43/77 Industrial Diamond Supplies ν Riva [1977] ECR 2125, Brennero and Van Dalfsen. The court designated in Article 37(1) has jurisdiction under Article 36 to hear an appeal against the decision given on the application authorizing enforcement. It must allow the appeal if one of the grounds for refusal listed in Articles 27 and 28 is present, otherwise it must dismiss it. Under Article 38 that court may stay the appeal proceedings, but is not obliged to do so, as the Court has held: '... the court before which... enforcement is sought is not under a duty to stay the proceedings but merely has the power to do so'. 45 That provision, unlike the preceding one, is not in any way concerned with reaching a decision on the substance. Its purpose is different, as the Court stated: '... the specific purpose of [Article] 38 is to prevent the compulsory recognition or enforcement of judgments in other Contracting States when the possibility that they might be annulled or amended in the State in which they were given still exists' Riva, paragraph Riva, paragraph 30. I

15 SISRO ν AMPERSAND 49. In the Van Dalfsen case the Court had occasion to draw a clear distinction between the two possibilities. Following the Opinion of the Advocate General, 4 7 it emphasized that '... the procedure under Article 36 and that under Article have a different object'. stay of the appeal proceedings one must be able to put forward one of the grounds set out in Articles 27 and 28, what purpose would Article 38 then still have? Let us suppose that a party against whom enforcement of a judgment is sought is able successfully to advance one of those grounds of refusal. He will undoubtedly rely on it for an appeal under Article 36. In that case, as I have stated, the court hearing that appeal will be obliged to refuse enforcement of the judgment in the State in which enforcement is sought. But if a decision has been given on the substance of the appeal, the question of a stay of those appeal proceedings ipso facto no longer arises, and there is no longer any need for Article 38. The Court then stated: 'In fact the appeal procedure envisaged by Article 36 relates to the legal question of whether, regard being had to the reasons exhaustively specified in Articles 27 and 28 of the Convention, the enforcement order has been lawfully issued, whereas the decision relating to a stay of proceedings or the provision of security under Article 38 constitutes a subsidiary measure designed to settle the subsequent course of the procedure...' For those reasons, I conclude that Article 38 of the Convention may be relied upon regardless of the absence of grounds for refusing recognition and enforcement of the foreign judgment as provided for in Articles 27 and 28 of the Convention. The second question 50. Finally, I would rely on the practical effect of Article 38. If SISRO's view were followed and it was accepted that to obtain a 47 Opinion of Advocate General Van Gerven in Van Dalfsen, point Van Dalfsen judgment, paragraphs 22 and 23, my emphasis. 52. By its second question the national court asks whether the refusal by the courts of the State of origin to order a stay of enforcement of the judgment is binding on the court of the State in which enforcement is sought when hearing an application for a stay under Article 38 of the Convention. I

16 OPINION OF MR LEGER CASE C-432/ I note again that the power to stay proceedings under Article 38 is merely a power within the discretion of the court of the State in which enforcement is sought, 49 so that the 'freedom of discretion [of the court hearing the application for enforcement] is implicit in the actual system of Article 38...'. 50 The decision of the court of the State of origin not to order a stay of enforcement of the judgment cannot therefore by any means be decisive as regards the exercise of the power to stay proceedings in the State in which enforcement is sought, if that discretion is not to be called into question Is that decision of the court of the State of origin relevant? decision in the State in which it was given'. 52 The exercise of that power must therefore enable the court to 'protect the judgment debtor against any loss which could result from the enforcement of a judgment which has not yet become res judicata and may be amended'. 53 In exercising that power to order a stay, the court will thus in practice have occasion to take into account the chances of success of the appeal lodged in the State of origin. To do that, it seems to me that the refusal by the court of the State of origin to order a stay of enforcement of the judgment even though an appeal is still pending may constitute a factor of relevance for the court of the State in which enforcement is sought when making its assessment of the appeal's chances of success. 55. The object of Article 38 is to enable the court with which the appeal is lodged to 'stay the proceedings whenever reasonable doubt arises with regard to the fate of the 56. I therefore consider that a refusal to order a stay of enforcement in the State of origin is never decisive for the purposes of the power of the court of the State in which enforcement is sought to stay proceedings, but may be relevant. 57. For the above reasons, I suggest that the Court answer as follows: The court with which an appeal, limited to the examination of points of law only, is lodged, pursuant to Article 37(2) of the Brussels Convention of 27 September 49 Riva, paragraph Ibid., paragraph The only decision which could be decisive would be one to order a stay of enforcement of the judgment, since in that case the requirement of enforceability of the judgment, referred to m Articles 31 and 47(1), would no longer be met. 52 Riva, paragraph Jenard Report, p. 52. I

17 SISRO ν AMPERSAND 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, does not have jurisdiction to impose or reimpose a stay of proceedings which has been refused or lifted by one of the courts referred to in Article 37(1). In the alternative, A person who has brought an appeal in a Contracting State under Article 36 of the Convention may apply for a stay of proceedings under Article 38, even though he is unable to rely on one of the grounds for refusing recognition and enforcement provided for in Articles 27 and 28. The refusal to stay the enforcement of a judgment in the State of origin, while never decisive, may be relevant for the exercise of the power to stay proceedings, provided for in Article 38 of the Convention, of the court with which the appeal is lodged in the State in which enforcement is sought. I