The Gazette 1985

GAZETTE

SEPTEMBER1985

customs or administrative matters were not covered by

the Convention.

Article 1 has given rise to several important interpre-

tative judgements o f the Court of Justice. It is clear

f r om the report o f the drafters o f the Convention and

f r om the judgements o f the Court o f Justice that the

term "civil and commercial matters" was intended to be

and will be interpreted broadly whereas the exceptions

will be interpreted more restrictively.

In an early case

the Court sought to prevent dif-

ferent interpretations in different Member States by

holding that the concept o f civil and commercial matters

was not to be interpreted by reference to the internal law

of any one State but by reference both to the objectives

and the scheme o f the Convention and the general prin-

ciples which stem f r om the corpus o f the national legal

system. In the same case the Court dealt with the

exclusion o f matters o f public law f r om the application

o f the Convention. The Court held that " a l t hough

certain judgements in actions between a public authority

and a person governed by private law may fall within

the area o f application o f the Convention, this is not so

where the public authority acts in the exercise o f its

powe r s " .

Lest there would be doubt about it the Court

specifically held in the case o f

Sanicentral

-v-

Collins

that Employment Law did c ome within the field o f

application o f the Convention.

The trend o f the decisions in relation to the exceptions

in the second paragraph o f Article 1 is that they were

interpreted restrictively and the Court would appear to

regard the list o f exceptions as exhaustive. Some inter-

esting cases have been decided on the exception in Article 1

relating to property rights arising out o f marriage.

In the first

de Cavel

case

, while divorce proceed-

ings were pending in the French courts an interim Order

was made freezing the wife's assets. The husband

sought to enforce the Order in the German courts which

referred a question to the Court of Justice as whether

the matter came within the scope o f the Convention.

The Court held that such matters were excluded, stating

that:— " t he enforced settlement on a provisional basis

o f propriety legal relationships between spouses in the

course o f proceedings for divorce is closely linked to the

grounds for the divorce and the personal situation o f the

spouses or any children o f the marriage and is, for that

reason, inseparable f r om questions relating to the status

o f persons raised by the dissolution o f the matrimonial

relationship and from the settlement of rights in property

arising out of the matrimonial relationship".

It is clear f r om this judgement that disputes concern-

ing proprietary legal relations between spouses only fall

within the scope o f the Convention where they have no

connection with the marriage itself. Another interesting

point decided by this case was that, for the purposes o f

the Convention it did not matter whether a court Order

was provisional or final.

The second

de Cavel

case concerned maintenance

payments by one spouse to another.

During the

course o f the divorce proceedings the wife sought to

enforce, in Germany, the French court's interim Order

that the husband make certain maintenance payments.

Before the point was decided the divorce was granted

and the French court made a further Order o f monthly

payments to be made after the divorce. The Court firstly

held that "it is well settled that the subject o f mainten-

ance obligations itself falls within the concept o f "civil

matter" and since it is not taken out by the exceptions

provided for in the second paragraph of Article 1 o f the

Convention it therefore falls within the scope o f the

C o n v e n t i o n ". The Court further held that maintenance

obligations relating to the period after divorce came

equally within the scope of application of the Convention.

It is interesting to note that the maintenance questions

were part o f divorce proceedings that, o f course, d o not

c ome within the scope o f the Convention. The Court

held that the fact that a matter was ancillary to another

matter which itself was not covered by the Convention

did not exclude it.

Another c a s e» dealt with the interpretation o f the

second exception in Article 1 relating to bankruptcy,

winding up, etc.

Jurisdiction — Basic Rule

Article 2 lays d own the basic rule for determining

jurisdiction f r om which all other provisions on juris-

diction derive their exceptional nature. Article 2

provides that where a person is domiciled in a Contrast-

ing State he must be sued in the Court of the State

except where the Convention specifically allows him to

be sued elsewhere. This is the case whatever the nation-

ality o f the defendant.

The definition of domicile for the purpose o f the

Convention will be o f considerable importance to Irish

lawyers. The Convention itself does not define what

" d o m i c i l e" is to mean but Article 52 indicates how it is

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