1 BY ORDER OF 12 OCTOBER 1983 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 18 NOVEMBER 1983 , THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) REFERRED TO THE COURT OF JUSTICE 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 ' ' ) TWO QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 37 AND 38 OF THE CONVENTION .
2 THOSE QUESTIONS AROSE IN A DISPUTE BETWEEN TWO SHOE MANUFACTURERS , BRENNERO AND WENDEL , WHICH HAVE THEIR REGISTERED OFFICES IN ITALY AND THE FEDERAL REPUBLIC OF GERMANY RESPECTIVELY . BRENNERO OBTAINED JUDGMENT AGAINST WENDEL IN AN ITALIAN COURT AND IS NOW SEEKING TO HAVE THAT JUDGMENT ENFORCED IN THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , IN ACCORDANCE WITH THE PROVISIONS OF THE CONVENTION .
3 THE PRESIDENT OF THE FOURTH CIVIL CHAMBER OF THE LANDGERICHT ( REGIONAL COURT ), DETMOLD , ISSUED AN ORDER FOR THE ENFORCEMENT OF THE JUDGMENT IN QUESTION AND , AT THE SAME TIME , AUTHORIZED THE ADOPTION OF PROTECTIVE MEASURES COVERING THE ASSETS OF THE GERMAN UNDERTAKING . WENDEL APPEALED AGAINST THAT DECISION UNDER THE FIRST PARAGRAPH OF ARTICLE 36 OF THE CONVENTION WHEREUPON THE OBERLANDESGERICHT ( HIGHER REGIONAL COURT ), HAMM , BEFORE GIVING JUDGMENT ON THE APPEAL , MADE ENFORCEMENT OF THE ITALIAN JUDGMENT CONDITIONAL ON BRENNERO PROVIDING SECURITY EVEN IF ENFORCEMENT WAS RESTRICTED TO THE ADOPTION OF PROTECTIVE MEASURES .
4 BRENNERO LODGED A RECHTSBESCHWERDE ( APPEAL ON A POINT OF LAW ) AGAINST THE OBERLANDESGERICHT ' S ORDER UNDER THE SECOND PARAGRAPH OF ARTICLE 37 OF THE CONVENTION . IT CONTENDED THAT A COURT WITH WHICH AN APPEAL HAS BEEN LODGED AGAINST A DECISION AUTHORIZING ENFORCEMENT CANNOT REQUIRE SECURITY TO BE PROVIDED WITHOUT AT THE SAME TIME GIVING JUDGMENT ON THE APPEAL .
5 THE BUNDESGERICHTSHOF , BEFORE WHICH THE RECHTSBESCHWERDE WAS BROUGHT , HELD THAT THE OBERLANDESGERICHT HAD NOT GIVEN JUDGMENT ON THE APPEAL AGAINST THE DECISION AUTHORIZING ENFORCEMENT BUT HAD INSTEAD , IN ACCORDANCE WITH WENDEL ' S SUGGESTION , GIVEN A PRELIMINARY DECISION CONCERNING THE PROVISION OF SECURITY . SINCE , IN THOSE CIRCUMSTANCES , THE DECISION GIVEN BY THE OBERLANDESGERICHT WAS AN INTERIM ORDER , IT WAS UNCERTAIN WHETHER IT COULD BE CONTESTED BY A RECHTSBESCHWERDE . UNDER THE GERMAN LAW OF CIVIL PROCEDURE , AN APPEAL OF THAT KIND IS INADMISSIBLE IF ITS PURPOSE IS TO CHALLENGE AN INTERIM ORDER ISSUED BY AN OBERLANDESGERICHT . IT CAN THEREFORE BE REVIEWED BY THE BUNDESGERICHTSHOF ONLY IF THE CONVENTION PROVIDES FOR SUCH AN APPEAL .
6 TAKING THE VIEW THAT IN THAT REGARD AN INTERPRETATION OF ARTICLES 37 AND 38 OF THE CONVENTION WAS NECESSARY TO ENABLE IT TO GIVE JUDGMENT , THE BUNDESGERICHTSHOF REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
' ' 1 . MAY THE OBERLANDESGERICHT IN THE FEDERAL REPUBLIC OF GERMANY WITH WHICH AN APPEAL AGAINST A DECISION AUTHORIZING ENFORCEMENT HAS BEEN LODGED BY A DEBTOR UNDER ARTICLES 36 AND 37 OF THE CONVENTION ISSUE AN ORDER UNDER THE SECOND PARAGRAPH OF ARTICLE 38 OF THE CONVENTION MAKING ENFORCEMENT CONDITIONAL ON THE PROVISION OF SECURITY ONLY AS PART OF ITS FINAL JUDGMENT ON THE APPEAL OR MAY IT ALSO ISSUE THE ORDER AS AN INTERIM MEASURE DURING THE APPEAL PROCEEDINGS?
2.MAY A RECHTSBESCHWERDE ( APPEAL ON A POINT OF LAW ) BE LODGED WITH THE BUNDESGERICHTSHOF EITHER DIRECTLY UNDER THE SECOND PARAGRAPH OF ARTICLE 37 OF THE CONVENTION , OR BY ANALOGY THEREWITH , AGAINST AN ORDER CONCERNING THE PROVISION OF SECURITY ISSUED BY THE OBERLANDESGERICHT ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 38 OF THE CONVENTION AS AN INTERIM MEASURE DURING THE APPEAL PROCEEDINGS?
' '
FIRST QUESTION ( ARTICLE 38 )
7 BRENNERO , THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES CONSIDER THAT UNDER ARTICLE 38 OF THE CONVENTION A COURT WITH WHICH AN APPEAL HAS BEEN LODGED AGAINST A DECISION AUTHORIZING ENFORCEMENT COULD NOT MAKE AN INTERIM ORDER REQUIRING SECURITY TO BE PROVIDED WITHOUT GIVING JUDGMENT ON THE APPEAL . THE POWER TO MAKE AN ORDER OF THAT KIND EXCLUDED BY THE WORDING OF ARTICLE 38 WHICH STATES THAT THE COURT WITH WHICH THE APPEAL WAS LODGED COULD MAKE ' ' ENFORCEMENT ' ' CONDITIONAL ON THE PROVISION OF SECURITY , SUCH ENFORCEMENT BEING POSSIBLE ONLY AFTER THE DISMISSAL OF THE APPEAL . MOREOVER , IN THEIR VIEW , THE EXERCISE BY THE COURT WITH WHICH THE APPEAL HAD BEEN LODGED OF THE POWER TO MAKE AN INTERIM ORDER REQUIRING SECURITY TO BE PROVIDED IS CONTRARY TO ONE OF THE OBJECTIVES OF THE CONVENTION WHICH IS INTENDED PRECISELY TO RENDER THE PROCEDURE FOR THE ENFORCEMENT OF A JUDGMENT GIVEN IN ANOTHER CONTRACTING STATE AS STRAIGHTFORWARD AND AS RAPID AS POSSIBLE .
8 THE GERMAN GOVERNMENT CONSIDERS THAT THE POWER OF THE COURT WITH WHICH THE APPEAL HAD BEEN LODGED TO MAKE AN ORDER FOR THE PROVISION OF SECURITY DURING THE APPEAL PROCEEDINGS WAS SUCH AS TO PREVENT THE DEBTOR FROM BEING EXPOSED TO RISKS INHERENT IN THE UNCERTAINTY SURROUNDING THE OUTCOME OF THE PROCEEDINGS IN THE STATE IN WHICH THE ORIGINAL JUDGMENT WAS GIVEN , SINCE ARTICLE 38 APPLIED ONLY WHERE THE JUDGMENT TO BE ENFORCED DID NOT YET HAVE THE FORCE OF RES JUDICATA IN THE STATE IN WHICH IT WAS GIVEN .
9 AT THE HEARING , WENDEL EXPRESSED ITS AGREEMENT WITH THAT VIEW PARTICULARLY ON THE GROUND THAT ALTHOUGH ARTICLE 38 APPLIES TO CASES WHERE THE JUDGMENT TO BE ENFORCED COULD STILL BE CONTESTED BY AN APPEAL IN THE STATE IN WHICH THAT JUDGMENT WAS GIVEN , ARTICLE 39 , WHICH AUTHORIZES THE ADOPTION OF INTERIM PROTECTIVE MEASURES , APPLIES ONLY IN CASES WHERE THAT JUDGMENT HAD BECOME FINAL UNDER THE LAW OF THE STATE IN WHICH IT WAS GIVEN . IN CASES SUCH AS THE PRESENT , THEREFORE , ONLY ARTICLE 38 IS RELEVANT WHILST ARTICLE 39 IS INAPPLICABLE .
10 IT IS APPROPRIATE TO RECALL IN THE FIRST PLACE THAT THE PURPOSE OF THE CONVENTION IS TO LIMIT THE NUMBER OF REQUIREMENTS TO WHICH THE ENFORCEMENT OF A JUDGMENT MAY BE SUBJECTED IN ANOTHER CONTRACTING STATE . THE CONVENTION ACCORDINGLY PROVIDES FOR A VERY SIMPLE ENFORCEMENT PROCEDURE WHILST GIVING THE PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT AN OPPORTUNITY TO LODGE AN APPEAL . UNLIKE THE INITIAL PROCEEDINGS CONCERNING THE DECISION AUTHORIZING ENFORCEMENT , THE PROCEEDINGS ON THE APPEAL ARE ADVERSARY PROCEEDINGS .
11 ARTICLE 39 OF THE CONVENTION GOVERNS THE RIGHTS OF THE PARTY WHO OBTAINED THE DECISION AUTHORIZING ENFORCEMENT WHICH IS CONTESTED BY THE APPEAL . UNTIL JUDGMENT IS GIVEN ON THAT APPEAL , THAT PARTY MAY , ACCORDING TO THAT PROVISION , TAKE ONLY ' ' PROTECTIVE MEASURES . . . AGAINST THE PROPERTY OF THE PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT . ' ' IT FOLLOWS THAT NO ENFORCEMENT MEASURES MAY BE TAKEN UNTIL THE COURT WITH WHICH THE APPEAL HAS BEEN LODGED GIVES JUDGMENT THEREON .
12 THAT IS THE CONTEXT IN WHICH THE SECOND PARAGRAPH OF ARTICLE 38 OF THE CONVENTION , UNDER WHICH THE COURT WITH WHICH THE APPEAL HAS BEEN LODGED MAY ' ' MAKE ENFORCEMENT CONDITIONAL ON THE PROVISION OF SUCH SECURITY AS IT SHALL DETERMINE ' ' , MUST BE SET . THE WHOLE SIGNIFICANCE OF THAT PROVISION LIES IN THE FACT THAT , AS SOON AS THE COURT GIVES JUDGMENT ON THE APPEAL , THE RESTRICTIONS PROVIDED FOR BY ARTICLE 39 CEASE TO BE APPLICABLE . ENFORCEMENT MEASURES MAY THEREFORE BE TAKEN WHILE THAT JUDGMENT CAN STILL BE CONTESTED BY AN APPEAL IN CASSATION OR BY A RECHTSBESCHWERDE , IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 37 , AND WHILE EVEN THE ORIGINAL JUDGMENT GIVEN IN THE FIRST STATE CAN STILL BE CONTESTED BY AN APPEAL , WHICH IS A POSSIBILITY EXPRESSLY PROVIDED FOR BY ARTICLE 38 . THAT IS THE TIME WHEN THE PROTECTION OF THE DEBTOR ' S INTERESTS MAY REQUIRE ENFORCEMENT TO BE MADE CONDITIONAL ON THE PROVISION OF SECURITY .
13 IT FOLLOWS THAT THE SECOND PARAGRAPH OF ARTICLE 38 OF THE CONVENTION MUST BE INTERPRETED AS MEANING THAT A COURT WITH WHICH AN APPEAL HAS BEEN LODGED AGAINST A DECISION AUTHORIZING ENFORCEMENT , GIVEN PURSUANT TO THE CONVENTION , MAY MAKE ENFORCEMENT CONDITIONAL ON THE PROVISION OF SECURITY ONLY WHEN IT GIVES JUDGMENT ON THE APPEAL .
SECOND QUESTION ( ARTICLE 37 )
14 BRENNERO OBSERVES THAT THE UNIFORM INTERPRETATION OF THE CONVENTION WOULD BE JEOPARDIZED IF AN INTERIM OR INTERLOCUTORY ORDER ISSUED BY THE COURT WITH WHICH THE APPEAL HAS BEEN LODGED COULD NOT BE CONTESTED BY AN APPEAL IN CASSATION OR BY A RECHTSBESCHWERDE . HOWEVER , ACCORDING TO THE COMMISSION AND THE GERMAN GOVERNMENT , THE SECOND PARAGRAPH OF ARTICLE 37 OF THE CONVENTION STATES CATEGORICALLY THAT A RECHTSBESCHWERDE CAN BE LODGED ONLY AGAINST THE FINAL JUDGMENT GIVEN ON THE APPEAL .
15 THE SECOND PARAGRAPH OF ARTICLE 37 PROVIDES THAT THE JUDGMENT GIVEN ON THE APPEAL MAY BE CONTESTED ONLY BY AN APPEAL IN CASSATION AND , IN THE FEDERAL REPUBLIC OF GERMANY , BY A RECHTSBESCHWERDE . UNDER 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 , 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 OR INTERLOCUTORY ORDER REQUIRING PRELIMINARY INQUIRIES TO BE MADE .
16 THEREFORE , THE ANSWER TO THE SECOND QUESTION MUST BE THAT THE SECOND PARAGRAPH OF ARTICLE 37 OF THE CONVENTION MUST BE INTERPRETED AS MEANING THAT AN APPEAL IN CASSATION AND , IN THE FEDERAL REPUBLIC OF GERMANY , A RECHTSBESCHWERDE MAY BE LODGED ONLY AGAINST THE JUDGMENT GIVEN ON THE APPEAL .
17 IF , IN THE PRESENT CASE , THE ANSWER TO THE SECOND QUESTION SHOULD LEAD THE BUNDESGERICHTSHOF TO DECLARE THE RECHTSBESCHWERDE LODGED AGAINST THE OBERLANDESGERICHT ' S ORDER INADMISSIBLE , WHILE THE ORDER SHOULD BE REGARDED AS UNLAWFUL IN THE LIGHT OF THE ANSWER TO THE FIRST QUESTION , IT IS FOR THE OBERLANDESGERICHT , WHEN THE CASE AGAIN COMES BEFORE IT , TO REVOKE THE INTERIM ORDER IN SO FAR AS IT REQUIRED SECURITY TO BE PROVIDED WITHOUT GIVING JUDGMENT ON THE APPEAL .
COSTS
18 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EURO PEAN 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 ( FOURTH CHAMBER )
IN REPLY TO THE QUESTIONS SUBMITTED TO IT BY THE BUNDESGERICHTSHOF BY ORDER OF 12 OCTOBER 1983 HEREBY RULES :
1 . THE SECOND PARAGRAPH OF ARTICLE 38 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 A COURT WITH WHICH AN APPEAL HAS BEEN LODGED AGAINST A DECISION AUTHORIZING ENFORCEMENT , GIVEN PURSUANT TO THE CONVENTION , MAY MAKE ENFORCEMENT CONDITIONAL ON THE PROVISION OF SECURITY ONLY WHEN IT GIVES JUDGMENT ON THE APPEAL ;
2.THE SECOND PARAGRAPH OF ARTICLE 37 OF THE CONVENTION OF 27 SEPTEMBER 1968 MUST BE INTERPRETED AS MEANING THAT AN APPEAL IN CASSATION AND , IN THE FEDERAL REPUBLIC OF GERMANY , A RECHTSBESCHWERDE MAY BE LODGED ONLY AGAINST THE JUDGMENT GIVEN ON THE APPEAL .
