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ED (Free movement of goods) [1999] EUECJ C-412/97 (22 June 1999)
URL: http://www.bailii.org/eu/cases/EUECJ/1999/C41297.html
Cite as:
[1999] EUECJ C-412/97
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT (Fifth Chamber)
22 June 1999 (1)
(Free movement of goods - Freedom to provide services - Free movement of
capital - National provision prohibiting the issue of a summary payment order
to be served outside national territory - Compatibility)
In Case C-412/97,
REFERENCE to the Court under Article 234 EC (ex Article 177) by the Pretura
Circondariale di Bologna, Italy, for a preliminary ruling in the proceedings pending
before that court between
ED Srl
and
Italo Fenocchio
on the interpretation of Articles 34 and 59 of the EC Treaty (now, after
amendment, Articles 29 EC and 49 EC) and Article 56 EC (ex Article 73b), for the
purpose of determining the compatibility with those provisions of a national rule
prohibiting the issue of a summary payment order to be served outside national
territory,
THE COURT (Fifth Chamber),
composed of: J.-P. Puissochet, President of the Chamber, P. Jann (Rapporteur),
D.A.O. Edward, L. Sevón and M. Wathelet, Judges,
Advocate General: G. Cosmas,
Registrar: L. Hewlett, Administrator,
after considering the written observations submitted on behalf of:
- the Italian Government, by Professor Umberto Leanza, Head of the Legal
Department of the Ministry of Foreign Affairs, acting as Agent, and Oscar
Fiumara, Avvocato dello Stato,
- the French Government, by Kareen Rispal-Bellanger, Head of the
Subdirectorate for International Economic Law and Community Law in the
Legal Affairs Directorate of the Ministry of Foreign Affairs, and Gautier
Mignot, Foreign Affairs Secretary in the same directorate, acting as Agents,
- the Austrian Government, by Christine Stix-Hackl, Gesandte in the Federal
Ministry of Foreign Affairs, acting as Agent, and
- the Commission of the European Communities, by Laura Pignataro and
Paolo Stancanelli, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of the Italian Government, represented by Oscar
Fiumara; the French Government, represented by Régine Loosli-Surrans, chargé
de mission in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting
as Agent; and the Commission, represented by Paolo Stancanelli, at the hearing on
26 November 1998,
after hearing the Opinion of the Advocate General at the sitting on
21 January 1999,
gives the following
Judgment
- By order of 29 November 1997, received at the Court on 5 December 1997, the
Pretura Circondariale di Bologna (District Magistrates' Court, Bologna) referred
to the Court for a preliminary ruling under Article 234 EC (ex Article 177) a
question on the interpretation of Articles 34 and 59 of the EC Treaty (now, after
amendment, Articles 29 EC and 49 EC) and Article 56 EC (ex Article 73b), for the
purpose of determining the compatibility with those provisions of a national rule
prohibiting the issue of a summary payment order to be served outside national
territory.
- That question has been raised in proceedings for a summary payment order
brought by ED Srl (hereinafter 'ED'), a company incorporated under Italian law
whose registered office is in Funo di Argelato, against Mr Fenocchio, who is
resident in Berlin, Germany.
- ED supplied goods to Mr Fenocchio to the value of ITL 19 933 700. Since Mr
Fenocchio paid only a sum of ITL 100 000 by way of down-payment and did not
pay the balance, ED applied, on 6 October 1997, to the Pretura Circondariale di
Bologna, under Article 633 of the Italian Code of Civil Procedure (hereinafter 'the
Code') for the issue of a summary order for payment of the outstanding sum,
together with interest and costs.
- It is not in dispute that the application complied with all the relevant substantive
conditions laid down. However, since the debtor was resident in Germany, the
order would have had to be served on him in that State. The application
accordingly conflicted with the final paragraph of Article 633 of the Code, which
provides that 'the order may not be made if service on the defendant pursuant to
Article 643 must be effected outside Italy or the territories under Italian
sovereignty.'
- The national court explains that the special procedure for a summary payment
order enables an enforceable court order against a debtor to be obtained quickly
and cheaply. The procedure involves a summary examination in which the plaintiff
must simply prove the debt with appropriate documentary evidence. The order is
issued by the judge ex parte. The debtor has the right to oppose the order. If he
does so, ordinary contentious proceedings between the parties commence.
- According to the national court, the justification for the prohibition on recourse to
that procedure where the debtor resides abroad was originally to avoid the debtor's
never knowing of an order issued against him or not becoming aware of it until
after expiry of the period laid down for opposing it, which would prevent the
exercise of his right to defend the action. However, while that reason was valid in
1940, when the rule was adopted, it is no longer justified today, when service
abroad no longer poses a major problem and the time-limits for opposing an order
are sufficiently long. The national court adds that that is particularly true in the
case of States which are signatories to the Hague Convention of 15 November 1965
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, Article 10(a) of which allows service by post.
- The national court is accordingly uncertain whether the prohibition at issue is
compatible with Articles 34 and 59 of the Treaty and Article 56 EC. Undertakings
established in Italy could be led to prefer to maintain business relations with
customers operating in that Member State rather than with foreign customers, since
it is only as against Italian customers that they may have the special protection and
reduced costs afforded by the procedure for obtaining summary payment orders.
For that reason, the free movement of goods could be affected, as could the
freedom to provide services, since the procedure for obtaining summary payment
orders may also be used in the case of debts arising from the supply of services.
Where debts relate to sums of money, the prohibition at issue could also amount
to interference with the free movement of capital.
- The national court states, furthermore, that the provision in question has previously
been considered in the context of an objection alleging unconstitutionality raised
before the Corte Costituzionale (Constitutional Court). In its order dismissing the
objection (see Order No 364 of 27 June 1989 Giurisprudenza Costituzionale 1990,
IV, p. 1161), the Corte Costituzionale held that the Community Treaties did not
enable general principles affecting legal proceedings to be identified, this field being
governed by the domestic law of the Member States. The prohibition on the issue
of a summary payment order which was to be served abroad was merely a ground
excluding the protection conferred by that procedure and did not involve a lack of
jurisdiction since ordinary proceedings could still be brought.
- In those circumstances, the Pretura Circondariale di Bologna decided to stay
proceedings and refer the following question to the Court for a preliminary ruling:
'Must the prohibition on issuing a summary payment order where it is to be served
on the defendant outside Italy or the territories under Italian sovereignty, that
prohibition being laid down by the last paragraph of Article 633 of the Code of
Civil Procedure, be regarded as a restriction or measure having equivalent effect
capable of hindering, directly or indirectly, actually or potentially, the free
movement of goods, services and capital guaranteed by Articles 34, 59 and 73b of
the Treaty of Rome?'
Article 34 of the EC Treaty (now, after amendment, Article 29 EC)
- According to the settled case-law of the Court, Article 34 of the Treaty applies to
national measures which have as their specific object or effect the restriction of
patterns of exports and thereby the establishment of a difference in treatment
between the domestic trade of a Member State and its export trade, in such a way
as to provide a particular advantage for national production or for the domestic
market of the State in question (see, in particular, Case 237/82 Jongeneel Kaas and
Others v Netherlands [1984] ECR 483, paragraph 22).
- It is true that the effect of the national provision referred to in paragraph 4 above
is to subject traders to different procedural rules according to whether they supply
goods within the Member State concerned or export them to other Member States.
However, as the French and Austrian Governments have rightly pointed out, the
possibility that nationals would therefore hesitate to sell goods to purchasers
established in other Member States is too uncertain and indirect for that national
provision to be regarded as liable to hinder trade between Member States (see, in
a different context, Case C-69/88 Krantz v Ontvanger der Directe Belastingen [1990]
ECR I-583, paragraph 11, Case C-339/89 Alsthom Atlantique v Sulzer [1991] ECR I-107, paragraphs 14 and 15, and Case C-93/92 CMC Motorradcenter v
Baskiciogullari [1993] ECR I-5009, paragraph 12).
- As far as this part of the question is concerned, the conclusion must therefore be
that Article 34 of the Treaty does not preclude national legislation which excludes
recourse to the procedure for obtaining summary payment orders where service on
the debtor is to be effected in another Member State of the Community.
Article 59 of the EC Treaty (now, after amendment, Article 49 EC)
- In this regard, it need only be stated that, as has been pointed out by the
Commission and the majority of the Member States which have submitted
observations to the Court, the main proceedings have no connection with a supply
of services.
- Consequently, there is no need to answer the part of the question relating to
Article 59 of the Treaty.
Article 56 EC (ex Article 73b)
- Article 56(2) EC provides:
'Within the framework of the provisions set out in this Chapter, all restrictions on
payments between Member States and between Member States and third countries
shall be prohibited.'
- In order to ascertain the scope of that provision, it should be compared with the
provision which it replaces, namely the former Article 106(1) of the EEC Treaty
(which became Article 73h(1) of the EC Treaty, in turn repealed by the Treaty of
Amsterdam). Article 106(1) stated:
'Each Member State undertakes to authorise, in the currency of the Member State
in which the creditor or the beneficiary resides, any payments connected with the
movement of goods, services or capital, and any transfers of capital and earnings,
to the extent that the movement of goods, services, capital and persons between
Member States has been liberalised pursuant to this Treaty.'
- Like Article 106 of the EEC Treaty, Article 56(2) EC is intended to enable a
person liable to pay a sum of money in the context of a supply of goods or services
to discharge that contractual obligation voluntarily without undue restriction and
to enable the creditor freely to receive such a payment. However, that provision
is not applicable to the procedural rules which govern an action by a creditor
seeking payment of a sum of money from a recalcitrant debtor.
- The reply to be given to the national court must therefore be that a national
procedural provision, such as that in question in the main proceedings, does not
constitute a restriction on the freedom to make payments.
Costs
19. The costs incurred by the Italian, French and Austrian Governments and by the
Commission, which have submitted observations to the Court, are not recoverable.
Since these proceedings are, for the parties to the main proceedings, 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 (Fifth Chamber),
in answer to the question referred to it by the Pretura Circondariale di Bologna by
order of 29 November 1997, hereby rules:
1. Article 34 of the EC Treaty (now, after amendment, Article 29 EC) does not
preclude national legislation which excludes recourse to the procedure for
obtaining summary payment orders where service on the debtor is to be
effected in another Member State of the Community.
2. A national procedural provision, such as that in question in the main
proceedings, does not constitute a restriction on the freedom to make
payments.
PuissochetJann
Edward
Sevón Wathelet
|
Delivered in open court in Luxembourg on 22 June 1999.
R. Grass
J.-P. Puissochet
Registrar
President of the Fifth Chamber
1: Language of the case: Italian.