Mario Reichert, Hans-Heinz Reichert y Ingeborg Kockler contra Dresdner Bank AG.

• Jurisdiction: European Union
• Celex Number: 61990CJ0261
• ECLI: ECLI:EU:C:1992:149
• Docket Number: C-261/90
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 26 March 1992

Avis juridique important

|

61990J0261

Judgment of the Court (Fifth Chamber) of 26 March 1992. - Mario Reichert, Hans-Heinz Reichert and Ingeborg Kockler v Dresdner Bank AG. - Reference for a preliminary ruling: Cour d'appel d'Aix-en-Provence - France. - Brussels Convention of 27 September 1968 - Action paulienne - Articles 5 (3), 16 (5) and 24 of the Convention. - Case C-261/90.

European Court reports 1992 Page I-02149

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

++++

1. Convention on Jurisdiction and the Enforcement of Judgments - Special jurisdiction - Jurisdiction "in matters relating to tort, delict or quasi-delict" - Concept - "Action paulienne" - Not included

(Convention of 27 September 1968, Art.5(3))

2. Convention on Jurisdiction and the Enforcement of Judgments - Exclusive jurisdiction - "Proceedings concerned with the enforcement of judgments" - Concept - Disputes regarding the action of authorities responsible for enforcement - "Action paulienne" - Not included

(Convention of 27 September 1968, Art.16(5))

3. Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction to adopt provisional or protective measures - Concept of provisional or protective measures - Measures seeking to maintain a factual or legal situation pending a decision on the substance of the matter - "Action paulienne" - Not included

(Convention of 27 September 1968, Art. 24)

Summary

1. An action provided for by national law, such as the so-called "action paulienne" in French law, the purpose of which is not to have the debtor ordered to make good the damage he has caused his creditor by fraudulent conduct, but to render ineffective, as against his creditor, the disposition which the debtor has made, cannot be regarded as a claim seeking to establish the liability of a defendant in the sense in which it is understood in Article 5(3) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Such an action therefore does not come within the scope of that provision.

2. Article 16(5) of the Convention confers exclusive jurisdiction on the courts of the place in which the judgment has been or is to be enforced to deal with proceedings which may arise from recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments.

An action such as the action paulienne, by which the creditor seeks to obtain the revocation with regard to himself of the transaction whereby the debtor has effected a disposition in fraud of the creditor' s rights and which therefore seeks to protect whatever security the creditor may have with a view to a subsequent enforcement of the obligation of his debtor, is not intended to obtain a decision in such proceedings and does not therefore come within the scope of that provision.

3. Provisional or protective measures within the meaning of Article 24 must be understood as being measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter.

Whilst an action such as the action paulienne enables the creditor' s security to be protected by preventing the dissipation of his debtor' s assets, its purpose is that the court may vary the legal situation of the assets of the debtor and that of the beneficiary of the disposition effected by the debtor, and it cannot be described as a provisional or protective measure.

Parties

In Case C-261/90,

REFERENCE to the Court, 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, by the Cour d' Appel d' Aix-en-Provence (Court of Appeal, Aix-en-Provence) for a preliminary ruling in the proceedings pending before that court between

Mario Reichert,

Hans-Heinz Reichert,

Ingeborg Kockler

and

Dresdner Bank AG,

on the interpretation of Articles 5(3), 16(5) and 24 of the Brussels Convention of 27 September 1968,

THE COURT (Fifth Chamber),

composed of: R. Joliet, President of Chamber, F. Grévisse, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias and M. Zuleeg, Judges,

Advocate General: C. Gulmann,

Registrar: J.A. Pompe, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Dresdner Bank AG, by Egbert Jestaedt and Otto Steinmann, Rechtsanwaelte, Saarbruecken;

- the Commission of the European Communities, by Étienne Lasnet, Legal Adviser, acting as Agent, assisted by Hervé Lehman, of the Paris Bar;

having regard to the Report for the Hearing,

after hearing the oral observations of Dresdner Bank AG and the Commission at the hearing on 6 December 1991,

after hearing the Opinion of the Advocate General at the sitting on 20 February 1992,

gives the following

Judgment

Grounds

1 By judgment of 7 May 1990, received at the Court Registry on 28 August 1990, the Cour d' Appel d' Aix-en-Provence referred to the Court for a preliminary ruling under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27...