Civil and commercial matters: proceedings forming part of a greater whole

A closely related issue arises when the claimant brings proceedings which at first sight appear to take the form of a civil or commercial matter, but which, when placed in their broader context also appear to be a fragment of larger subject matter which does fall outside the scope of the Convention. Where that is the case, the matter falls wholly outside the Convention.

In Owens Bank Ltd v Bracco proceedings were brought before the Italian courts to obtain authorisation to enforce a judgment given by the courts of St Vincent and the Grenadines, a non-Member State. As proceedings to enforce a non-Member State judgment fell outside the scope of the Convention, it followed that the decision of an Italian court in such proceedings on the issue whether the judgment from St Vincent had been obtained by fraud and forgery, would also fall outside the Convention. It further followed that when the same issue of fraud or forgery, sufficient to prevent recognition of the judgment in England, came before the English courts, what is now Article 27 of the Convention had no application to it. The subject matter of the case was the enforcement of judgments from a non-Member State; and proceedings or procedures which arose within and formed part of that subject matter were also outside the scope of the Convention. This principle may also explain why in proceedings which were principally concerned with status, a Dutch court had no obligation to recognise a German maintenance decree, even though this, taken in isolation, was a matter which fell within the material scope of the Convention; this may also help explain the Court’s treatment of the claim against the German State for loss and damage caused by its servants and agents.

To the same effect, a fine imposed in proceedings which were concerned with intellectual property rights is itself a civil or commercial matter, because the broad context of the litigation was rights of intellectual property.^[1] The incidental issue, the fine, assumes the character of the broader relationship between the parties, of the broad issue which has arisen; to use another idiom, the lesser issue accedes to the greater. On the other hand, an order for compensation made against the defendants to a criminal investigation is a civil matter, notwithstanding the broader criminal context.

Such an understanding of the way Article 1 works would support the result in Lechouritou v Germany." For if proceedings against the German State for damages or reparation for its wartime barbarity would not be a civil or commercial matter, a claim which was in truth a small part of that larger excluded subject matter could not properly be torn from its context in order to be given the opposite characterisation.

The decision of the Court in Apostolides v Grams'⁰' might have taken, but apparently did not adopt, a similar approach. A claim by a dispossessed landowner, who had been ethnically cleansed from the northern area of the Republic of Cyprus by the armed forces of the Turkish State, brought proceedings for trespass against defendants who had purported to purchase his land from a vendor who had only a stolen title to it. Having obtained judgment in the courts of the Republic of Cyprus, the claimant sought to enforce it in England. The European Court confirmed that there were no grounds within Chapter 111 of the Brussels Regulation upon which recognition of the judgment could be refused. It declined to take the view that proceedings brought to obtain damages or other relief for trespass to land were brought in anything other than a civil or commercial matter. In doing so it appears to have spurned the argument, but which may not have been directly put, that the subject matter of the case was the legal rights and illegal wrongs flowing from the Turkish invasion of Cyprus and the installation of a junta to administer the occupation and to sell off looted assets, and that the claim was merely a sub-issue, part of a much broader issue which fell entirely outside the scope of Article 1. The Court may have been right to decide as it did, but one cannot help but observe that if litigation about effect of the belligerent invasion of Greece on the property rights of individual landowners falls outside Article 1, litigation about the effect of the belligerent invasion of Cyprus on the property rights of individual landowners might have done as well.

The actual proceedings in Lechouritou were framed as an attempt to vindicate private, patrimonial, rights and to claim damages for their infringement; but they had to be seen as part of a broader picture which was excluded from Article 1. Had that been the method of approach in Apostolides, the result might have been different from that actually reached by the Court. Although both are concerned with claims rooted in invasion by the forces of fascism, there are obvious differences between the two cases. In Lechouritou, the claim was brought against the German State which had invaded Greece; in Apostolides, it was brought against a private individual, albeit one who claimed to have acquired title from the illegal regime installed by the invaders, with the result that no State was party to the proceedings in Apostolides. But it is not obvious that this is or ought to be enough to justify the difference in approach or outcome. It would be unsettling if there were to be a distinction according to whether the fascist aggression of the State which was the ultimate cause of the claimant’s loss was that of a previous incarnation of a Lugano State or of the present incarnation of a nonLugano State. The matter cannot really be taken further; the impact of war on private international law is not always tidy.

• [1] C-406/09 Realchemie Nederland BV v Bayer CropScience AG [2011] ECR 1-9773. 2 See C-523/14 AB Aertssen NV v VSB Machineverhuur BV EU:C:2015:722, [2016] ILPr 387. 3 C-420/07, [2009] ECR 1-3571. 4 One must admit that this is not easy to reconcile with C-645/11 Land Berlin v Sapir EU:C:2013:228, [2013] ILPr 481. 5 C-420/07. [2009] ECR 1-3571.