JUDGMENT OF THE COURT

28 March 2000 (1)

(Brussels Convention - Enforcement of judgments - Public policy)

In Case C-7/98,

REFERENCE to the Court pursuant to the Protocol of 3 June 1971 on theinterpretation by the Court of Justice of the Convention of 27 September 1968 onJurisdiction and the Enforcement of Judgments in Civil and Commercial Mattersby the Bundesgerichtshof (Germany) for a preliminary ruling in the proceedingspending before that court between

Dieter Krombach

and

André Bamberski

on the interpretation of Article 27, point 1, of the abovementioned Convention of27 September 1968 (OJ 1978 L 304, p. 36), as amended by the Convention of9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and theUnited Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and- amended version - p. 77) and by the Convention of 25 October 1982 on theAccession of the Hellenic Republic (OJ 1982 L 388, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida,D.A.O. Edward, L. Sevón, R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn,C. Gulmann, J.-P. Puissochet, G. Hirsch, P. Jann (Rapporteur) and H. Ragnemalm,Judges,

Advocate General: A. Saggio,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

-    Mr Bamberski, by H. Klingelhöffer, Rechtsanwalt, Ettlingen,

-    the German Government, by R. Wagner, Regierungsdirektor in the FederalMinistry of Justice, acting as Agent,

-    the French Government, by K. Rispal-Bellanger, Deputy Head of the LegalDirectorate of the Ministry of Foreign Affairs, and R. Loosli-Surrans,Chargée de Mission in that Directorate, acting as Agents,

-    the Commission of the European Communities, by J.L. Iglesias Buhigues,Legal Adviser, acting as Agent, assisted by B. Wägenbaur, of the BrusselsBar,

having regard to the Report for the Hearing,

after hearing the oral observations of the French Government and the Commissionat the hearing on 2 March 1999,

after hearing the Opinion of the Advocate General at the sitting on 23 September1999,

gives the following

Judgment

1.

    By order of 4 December 1997, received at the Court on 14 January 1998, theBundesgerichtshof (Federal Court of Justice), Germany, referred to the Court fora preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretationby the Court of Justice of the Convention of 27 September 1968 on Jurisdiction andthe Enforcement of Judgments in Civil and Commercial Matters three questionsconcerning the interpretation of Article 27, point 1, of the abovementionedConvention of 27 September 1968 (OJ 1978 L 304, p. 36), as amended by theConvention of 9 October 1978 on the Accession of the Kingdom of Denmark,Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978L 304, p. 1 and - amended version - p. 77) and by the Convention of 25 October1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1) (hereinafter'the Convention‘).

2.

    Those questions have arisen in proceedings between Mr Bamberski, who isdomiciled in France, and Mr Krombach, who is domiciled in Germany, relating tothe enforcement, in the latter Contracting State, of a judgment delivered on13 March 1995 by the Cour d'Assises de Paris (Paris Assizes) which orderedMr Krombach to pay to Mr Bamberski, the plaintiff in a civil claim, compensationin the amount of FRF 350 000.

The Convention

3.

    The first paragraph of Article 1 provides that the Convention 'shall apply in civiland commercial matters whatever the nature of the court or tribunal‘.

4.

    With regard to jurisdiction, the rule of principle, set out in the first paragraph ofArticle 2 of the Convention, states that persons domiciled in a Contracting Stateshall, whatever their nationality, be sued in the courts of that State. The secondparagraph of Article 3 prohibits a plaintiff from relying on certain rules ofexorbitant jurisdiction, in particular, so far as France is concerned, those based onnationality which derive from Articles 14 and 15 of the Code Civil (Civil Code).

5.

    The Convention also sets out special rules of jurisdiction. Thus, Article 5 of theConvention provides:

'A person domiciled in a Contracting State may, in another Contracting State, besued:

...

4.    as regards a civil claim for damages or restitution which is based on an actgiving rise to criminal proceedings, in the court seised of those proceedings,to the extent that that court has jurisdiction under its own law to entertaincivil proceedings‘.

6.

    In matters relating to the recognition and enforcement of judgments, the rule ofprinciple, set out in the first paragraph of Article 31 of the Convention, providesthat a judgment given in a Contracting State and enforceable in that State is to beenforced in another Contracting State when, on the application of any interestedparty, it has been declared enforceable there.

7.

    Under the second paragraph of Article 34, '[t]he application may be refused onlyfor one of the reasons specified in Articles 27 and 28‘.

8.

    Article 27, point 1, of the Convention states:

'A judgment shall not be recognised:

1.    if such recognition is contrary to public policy in the State in whichrecognition is sought‘.

9.

    Article 28, third paragraph, of the Convention states:

'Subject to the provisions of the first paragraph, the jurisdiction of the court of theState of origin may not be reviewed; the test of public policy referred to in point 1of Article 27 may not be applied to the rules relating to jurisdiction‘.

10.

    Article 29 and the third paragraph of Article 34 of the Convention provide:

'Under no circumstances may a foreign judgment be reviewed as to its substance.‘

11.

    Article II of the Protocol annexed to the Convention (hereinafter 'the Protocol‘),which, according to Article 65 of the Convention, forms an integral part thereof,provides:

'Without prejudice to any more favourable provisions of national laws, personsdomiciled in a Contracting State who are being prosecuted in the criminal courtsof another Contracting State of which they are not nationals for an offence whichwas not intentionally committed may be defended by persons qualified to do so,even if they do not appear in person.

However, the court seised of the matter may order appearance in person; in thecase of failure to appear, a judgment given in the civil action without the personconcerned having had the opportunity to arrange for his defence need not berecognised or enforced in the other Contracting States.‘

The dispute in the main proceedings

12.

    Mr Krombach was the subject of a preliminary investigation in Germany followingthe death in Germany of a 14-year-old girl of French nationality. That preliminaryinvestigation was subsequently discontinued.

13.

    In response to a complaint by Mr Bamberski, the father of the young girl, apreliminary investigation was opened in France, the French courts declaring thatthey had jurisdiction by virtue of the fact that the victim was a French national. Atthe conclusion of that investigation, Mr Krombach was, by judgment of theChambre d'Accusation (Chamber of Indictments) of the Cour d'Appel de Paris(Paris Court of Appeal), committed for trial before the Cour d'Assises de Paris.

14.

    That judgment and notice of the introduction of a civil claim by the victim's fatherwere served on Mr Krombach. Although Mr Krombach was ordered to appear inperson, he did not attend the hearing. The Cour d'Assises de Paris thereuponapplied the contempt procedure governed by Article 627 et seq. of the FrenchCode of Criminal Procedure. Pursuant to Article 630 of that Code, under whichno defence counsel may appear on behalf of the person in contempt, the Courd'Assises reached its decision without hearing the defence counsel instructed by MrKrombach.

15.

    By judgment of 9 March 1995 the Cour d'Assises imposed on Mr Krombach acustodial sentence of 15 years after finding him guilty of violence resulting ininvoluntary manslaughter. By judgment of 13 March 1995, the Cour d'Assises,ruling on the civil claim, ordered Mr Krombach, again as being in contempt, to paycompensation to Mr Bamberski in the amount of FRF 350 000.

16.

    On application by Mr Bamberski, the President of a civil chamber of theLandgericht (Regional Court) Kempten (Germany), which had jurisdiction rationeloci, declared the judgment of 13 March 1995 to be enforceable in Germany. Following dismissal by the Oberlandesgericht (Higher Regional Court) of theappeal which he had lodged against that decision, Mr Krombach brought an appealon a point of law ('Rechtsbeschwerde‘) before the Bundesgerichtshof in which hesubmitted that he had been unable effectively to defend himself against thejudgment given against him by the French court.

17.

    Those are the circumstances in which the Bundesgerichtshof decided to stayproceedings and to refer the following questions to the Court for a preliminaryruling:

'1.    May the provisions on jurisdiction form part of public policy within themeaning of Article 27, point 1, of the Brussels Convention where the Stateof origin has based its jurisdiction as against a person domiciled in anotherContracting State (first paragraph of Article 2 of the Brussels Convention)solely on the nationality of the injured party (as in the second paragraph ofArticle 3 of the Brussels Convention in relation to France)?

If Question 1 is answered in the negative:

2.    May the court of the State in which enforcement is sought (first paragraphof Article 31 of the Brussels Convention) take into account under publicpolicy within the meaning of Article 27, point 1, of the Brussels Conventionthat the criminal court of the State of origin did not allow the debtor to bedefended by a lawyer in a civil-law procedure for damages instituted withinthe criminal proceedings (Article II of the Protocol of 27 September 1968on the interpretation of the Brussels Convention) because he, a resident ofanother Contracting State, was charged with an intentional offence and didnot appear in person?

If Question 2 is also answered in the negative:

3.    May the court of the State in which enforcement is sought take into accountunder public policy within the meaning of Article 27, point 1, of the BrusselsConvention that the court of the State of origin based its jurisdiction solelyon the nationality of the injured party (see Question 1 above) andadditionally prevented the defendant from being legally represented (seeQuestion 2 above)?‘

Preliminary observations

18.

    By its questions, the national court is essentially asking the Court how the term'public policy in the State in which recognition is sought‘ in point 1 of Article 27of the Convention should be interpreted.

19.

    The Convention is intended to facilitate, to the greatest possible extent, the freemovement of judgments by providing for a simple and rapid enforcementprocedure (see, inter alia, Case C-414/92 Solo Kleinmotoren v Boch [1994]ECR I-2237, paragraph 20, and Case C-267/97 Coursier v Fortis Bank [1999]ECR I-2543, paragraph 25).

20.

    It follows from the Court's case-law that this procedure constitutes an autonomousand complete system independent of the legal systems of the Contracting Statesand that the principle of legal certainty in the Community legal system and theobjectives of the Convention in accordance with Article 220 of the EC Treaty (nowArticle 293 EC), on which it is founded, require a uniform application in allContracting States of the Convention rules and the relevant case-law of the Court(see, in particular, Case C-432/93 SISRO v Ampersand [1995] ECR I-2269,paragraph 39).

21.

    So far as Article 27 of the Convention is concerned, the Court has held that thisprovision must be interpreted strictly inasmuch as it constitutes an obstacle to theattainment of one of the fundamental objectives of the Convention (SoloKleinmotoren, cited above, paragraph 20). With regard, more specifically, torecourse to the public-policy clause in Article 27, point 1, of the Convention, theCourt has made it clear that such recourse is to be had only in exceptional cases(Case 145/86 Hoffmann v Krieg [1988] ECR 645, paragraph 21, and Case C-78/95Hendrikman and Feyen v Magenta Druck & Verlag [1996] ECR I-4943, paragraph23).

22.

    It follows that, while the Contracting States in principle remain free, by virtue ofthe proviso in Article 27, point 1, of the Convention, to determine, according totheir own conceptions, what public policy requires, the limits of that concept area matter for interpretation of the Convention.

23.

    Consequently, while it is not for the Court to define the content of the public policyof a Contracting State, it is none the less required to review the limits within whichthe courts of a Contracting State may have recourse to that concept for thepurpose of refusing recognition to a judgment emanating from a court in anotherContracting State.

24.

    It should be noted in this regard that, since the Convention was concluded on thebasis of Article 220 of the Treaty and within the framework which it defines, itsprovisions are linked to the Treaty (Case C-398/92 Mund & Fester v HatrexInternationaal Transport [1994] ECR I-467, paragraph 12).

25.

    The Court has consistently held that fundamental rights form an integral part of thegeneral principles of law whose observance the Court ensures (see, in particular,Opinion 2/94 [1996] ECR I-1759, paragraph 33). For that purpose, the Courtdraws inspiration from the constitutional traditions common to the Member Statesand from the guidelines supplied by international treaties for the protection ofhuman rights on which the Member States have collaborated or of which they aresignatories. In that regard, the European Convention for the Protection of HumanRights and Fundamental Freedoms (hereinafter 'the ECHR‘) has particularsignificance (see, inter alia, Case 222/84 Johnston v Chief Constable of the RoyalUlster Constabulary [1986] ECR 1651, paragraph 18).

26.

    The Court has thus expressly recognised the general principle of Community lawthat everyone is entitled to fair legal process, which is inspired by thosefundamental rights (Case C-185/95 P Baustahlgewebe v Commission [1998]ECR I-8417, paragraphs 20 and 21, and judgment of 11 January 2000 in JoinedCases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission[2000] ECR I-0000, paragraph 17).

27.

    Article F(2) of the Treaty on European Union (now, after amendment, Article6(2) EU) embodies that case-law. It provides: 'The Union shall respectfundamental rights, as guaranteed by the European Convention for the Protectionof Human Rights and Fundamental Freedoms signed in Rome on 4 November1950 and as they result from the constitutional traditions common to the MemberStates, as general principles of Community law‘.

28.

    It is in the light of those considerations that the questions submitted for apreliminary ruling fall to be answered.

The first question

29.

    By this question, the national court is essentially asking whether, regard being hadto the public-policy clause contained in Article 27, point 1, of the Convention, thecourt of the State in which enforcement is sought can, with respect to a defendantdomiciled in that State, take into account the fact that the court of the State oforigin based its jurisdiction on the nationality of the victim of an offence.

30.

    It should be noted at the outset that it follows from the specific terms of the firstparagraph of Article 1 of the Convention that the Convention applies to decisionsgiven in civil matters by a criminal court (Case C-172/91 Sonntag v Waidmann andOthers [1993] ECR I-1963, paragraph 16).

31.

    Under the system of the Convention, with the exception of certain casesexhaustively listed in the first paragraph of Article 28, none of which correspondsto the facts of the case in the main proceedings, the court before whichenforcement is sought cannot review the jurisdiction of the court of the State oforigin. This fundamental principle, which is set out in the first phrase of the thirdparagraph of Article 28 of the Convention, is reinforced by the specific statement,in the second phrase of the same paragraph, that 'the test of public policy referredto in point 1 of Article 27 may not be applied to the rules relating to jurisdiction‘.

32.

    It follows that the public policy of the State in which enforcement is sought cannotbe raised as a bar to recognition or enforcement of a judgment given in anotherContracting State solely on the ground that the court of origin failed to comply withthe rules of the Convention which relate to jurisdiction.

33.

    Having regard to the generality of the wording of the third paragraph of Article 28of the Convention, that statement of the law must be regarded as being, inprinciple, applicable even where the court of the State of origin wrongly foundedits jurisdiction, in regard to a defendant domiciled in the territory of the State inwhich enforcement is sought, on a rule which has recourse to a criterion ofnationality.

34.

    The answer to the first question must therefore be that the court of the State inwhich enforcement is sought cannot, with respect to a defendant domiciled in thatState, take account, for the purposes of the public-policy clause in Article 27,point 1, of the Convention, of the fact, without more, that the court of the State oforigin based its jurisdiction on the nationality of the victim of an offence.

The second question

35.

    By this question, the national court is essentially asking whether, in relation to thepublic-policy clause in Article 27, point 1, of the Convention, the court of the Statein which enforcement is sought can, with respect to a defendant domiciled in itsterritory and charged with an intentional offence, take into account the fact that thecourt of the State of origin refused to allow that defendant to have his defencepresented unless he appeared in person.

36.

    By disallowing any review of a foreign judgment as to its substance, Article 29 andthe third paragraph of Article 34 of the Convention prohibit the court of the Statein which enforcement is sought from refusing to recognise or enforce that judgmentsolely on the ground that there is a discrepancy between the legal rule applied bythe court of the State of origin and that which would have been applied by thecourt of the State in which enforcement is sought had it been seised of the dispute. Similarly, the court of the State in which enforcement is sought cannot review theaccuracy of the findings of law or fact made by the court of the State of origin.

37.

    Recourse to the public-policy clause in Article 27, point 1, of the Convention canbe envisaged only where recognition or enforcement of the judgment delivered inanother Contracting State would be at variance to an unacceptable degree with thelegal order of the State in which enforcement is sought inasmuch as it infringes afundamental principle. In order for the prohibition of any review of the foreignjudgment as to its substance to be observed, the infringement would have toconstitute a manifest breach of a rule of law regarded as essential in the legal orderof the State in which enforcement is sought or of a right recognised as beingfundamental within that legal order.

38.

    With regard to the right to be defended, to which the question submitted to theCourt refers, this occupies a prominent position in the organisation and conduct ofa fair trial and is one of the fundamental rights deriving from the constitutionaltraditions common to the Member States.

39.

    More specifically still, the European Court of Human Rights has on severaloccasions ruled in cases relating to criminal proceedings that, although not absolute,the right of every person charged with an offence to be effectively defended by alawyer, if need be one appointed by the court, is one of the fundamental elementsin a fair trial and an accused person does not forfeit entitlement to such a rightsimply because he is not present at the hearing (see the following judgments of theEuropean Court of Human Rights: judgment of 23 November 1993 in Poitrimol vFrance, Series A No 277-A; judgment of 22 September 1994 in Pelladoah vNetherlands, Series A No 297-B; judgment of 21 January 1999 in Van Geyseghemv Belgium, not yet reported).

40.

    It follows from that case-law that a national court of a Member State is entitled tohold that a refusal to hear the defence of an accused person who is not present atthe hearing constitutes a manifest breach of a fundamental right.

41.

    The national court is, however, unsure as to whether the court of the State in whichenforcement is sought can take account, in relation to Article 27, point 1, of theConvention, of a breach of this nature having regard to the wording of Article IIof the Protocol. That provision, which involves extending the scope of theConvention to the criminal field because of the consequences which a judgment ofa criminal court may entail in civil and commercial matters (Case 157/80 Rinkau[1981] ECR 1391, paragraph 6), recognises the right to be defended withoutappearing in person before the criminal courts of a Contracting State for personswho are not nationals of that State and who are domiciled in another ContractingState only in so far as they are being prosecuted for an offence committedunintentionally. This restriction has been construed as meaning that theConvention clearly seeks to deny the right to be defended without appearing inperson to persons who are being prosecuted for offences which are sufficientlyserious to justify this (Rinkau, cited above, paragraph 12).

42.

    However, it follows from a line of case-law developed by the Court on the basis ofthe principles referred to in paragraphs 25 and 26 of the present judgment thatobservance of the right to a fair hearing is, in all proceedings initiated against aperson which are liable to culminate in a measure adversely affecting that person,a fundamental principle of Community law which must be guaranteed even in theabsence of any rules governing the proceedings in question (see, inter alia, CaseC-135/92 Fiskano v Commission [1994] ECR I-2885, paragraph 39, and CaseC-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21).

43.

    The Court has also held that, even though the Convention is intended to secure thesimplification of formalities governing the reciprocal recognition and enforcementof judgments of courts or tribunals, it is not permissible to achieve that aim byundermining the right to a fair hearing (Case 49/84 Debaecker and Plouvier vBouwman [1985] ECR 1779, paragraph 10).

44.

    It follows from the foregoing developments in the case-law that recourse to thepublic-policy clause must be regarded as being possible in exceptional cases wherethe guarantees laid down in the legislation of the State of origin and in theConvention itself have been insufficient to protect the defendant from a manifestbreach of his right to defend himself before the court of origin, as recognised bythe ECHR. Consequently, Article II of the Protocol cannot be construed asprecluding the court of the State in which enforcement is sought from beingentitled to take account, in relation to public policy, as referred to in Article 27,point 1, of the Convention, of the fact that, in an action for damages based on anoffence, the court of the State of origin refused to hear the defence of the accusedperson, who was being prosecuted for an intentional offence, solely on the groundthat that person was not present at the hearing.

45.

    The answer to the second question must therefore be that the court of the Statein which enforcement is sought can, with respect to a defendant domiciled in thatState and prosecuted for an intentional offence, take account, in relation to thepublic-policy clause in Article 27, point 1, of the Convention, of the fact that thecourt of the State of origin refused to allow that person to have his defencepresented unless he appeared in person.

The third question

46.

    In light of the reply to the second question, it is unnecessary to answer the thirdquestion.

Costs

47.

    The costs incurred by the German and French Governments and by theCommission, which have submitted observations to the Court, are not recoverable.Since these proceedings are, for the parties to the main proceedings, a step in theproceedings pending before the national court, the decision on costs is a matter forthat court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundesgerichtshof by order of4 December 1997, hereby rules:

Article 27, point 1, of the Convention of 27 September 1968 on Jurisdiction andthe Enforcement of Judgments in Civil and Commercial Matters, as amended bythe Convention of 9 October 1978 on the Accession of the Kingdom of Denmark,Ireland and the United Kingdom of Great Britain and Northern Ireland and by theConvention of 25 October 1982 on the Accession of the Hellenic Republic, must beinterpreted as follows:

(1)    The court of the State in which enforcement is sought cannot, with respectto a defendant domiciled in that State, take account, for the purposes of thepublic-policy clause in Article 27, point 1, of that Convention, of the fact,without more, that the court of the State of origin based its jurisdiction onthe nationality of the victim of an offence.

(2)    The court of the State in which enforcement is sought can, with respect toa defendant domiciled in that State and prosecuted for an intentionaloffence, take account, in relation to the public-policy clause in Article 27,point 1, of that Convention, of the fact that the court of the State of originrefused to allow that person to have his defence presented unless heappeared in person.

Rodríguez IglesiasMoitinho de Almeida Edward Sevón Schintgen Kapteyn Gulmann Puissochet Hirsch             Jann                            Ragnemalm

Delivered in open court in Luxembourg on 28 March 2000.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: German.