Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 80/83
REFERENCE TO THE COURT BY ORDER OF THE PRESIDENT OF THE TRIBUNALE DI VARESE ( DISTRICT COURT , VARESE ) OF 23 APRIL 1983 FOR A PRELIMINARY RULING IN THE JOINED PROCEEDINGS
HABOURDIN INTERNATIONAL SA , PARIS ,
AND
BANQUE NATIONALE DE PARIS , PARIS AND MILAN ,
V
SPA ITALOCREMONA,VARESE-GAZZADA ,
Subject of the case
ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ,
Grounds
BY ORDER OF 23 APRIL 1983 , RECEIVED AT THE COURT ON 6 MAY 1983 , THE PRESIDENT OF THE TRIBUNALE DI VARESE , PURSUANT TO 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 BRUSSELS CONVENTION ' ' ) SUBMITTED A QUESTION FOR A PRELIMINARY RULING ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THAT CONVENTION .
THAT PROTOCOL PROVIDES THAT ONLY CERTAIN COURTS , REFERRED TO IN ARTICLE 2 THEREOF , MAY REQUEST THE COURT OF JUSTICE TO GIVE PRELIMINARY RULINGS ON THE INTERPRETATION OF THE BRUSSELS CONVENTION , SO THAT , IN THIS INSTANCE , IT IS NECESSARY TO CONSIDER WHETHER THE COURT OF JUSTICE HAS JURISDICTION TO REPLY TO THE QUESTION SUBMITTED TO IT .
INDENTS 1 AND 3 OF THE ABOVE-MENTIONED ARTICLE 2 - THE FIRST DIRECTLY AND THE SECOND BY REFERENCE TO ARTICLE 37 OF THE BRUSSELS CONVENTION - LIST , EXPRESSLY AND EXHAUSTIVELY , THE COURTS WHICH MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING . ARTICLE 2 ( 2 ) STATES IN ADDITION THAT ' ' THE COURTS OF THE CONTRACTING STATES WHEN THEY ARE SITTING IN AN APPELLATE CAPACITY ' ' MAY ALSO REQUEST PRELIMINARY RULINGS .
ARTICLE 3 OF THE PROTOCOL PROVIDES THAT :
' ' 1 . WHERE A QUESTION OF INTERPRETATION OF THE CONVENTION OR OF ONE OF THE OTHER INSTRUMENTS REFERRED TO IN ARTICLE 1 IS RAISED IN A CASE PENDING BEFORE ONE OF THE COURTS LISTED IN ARTICLE 2 ( 1 ), THAT COURT SHALL , IF IT CONSIDERS THAT A DECISION ON THE QUESTION IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT , REQUEST THE COURT OF JUSTICE TO GIVE A RULING THEREON .
2.WHERE SUCH A QUESTION IS RAISED BEFORE ANY COURT REFERRED TO IN ARTICLE 2 ( 2 ) OR ( 3 ), THAT COURT MAY , UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH 1 , REQUEST THE COURT OF JUSTICE TO GIVE A RULING THEREON . ' '
SINCE THE ITALIAN TRIBUNALI ( DISTRICT COURTS ) ARE NOT REFERRED TO EITHER IN ARTICLE 2 ( 1 ) OF THE PROTOCOL OR IN ARTICLE 37 OF THE BRUSSELS CONVENTION , THEY MAY REQUEST THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING ON A QUESTION OF INTERPRETATION ONLY WHEN THEY ARE ' ' SITTING IN AN APPELLATE CAPACITY ' ' .
IT IS APPARENT FROM THE PAPERS IN THE CASE THAT THE ORDER REQUESTING A PRELIMINARY RULING WAS MADE IN THE COURSE OF PROCEEDINGS AT FIRST INSTANCE ON AN ACTION BROUGHT PURSUANT TO ARTICLE 645 OF THE ITALIAN CODE OF CIVIL PROCEDURE AGAINST A PAYMENT ORDER MADE UNDER THE SUMMARY PROCEDURE PROVIDED FOR IN ARTICLES 633 ET SEQ . OF THE CODE OF CIVIL PROCEDURE . IT MUST THEREFORE BE STATED THAT THE ORDER OF THE NATIONAL COURT WAS NOT MADE IN THE CIRCUMSTANCES PROVIDED FOR IN ARTICLE 2 ( 2 ) OF THE PROTOCOL ON THE INTERPRETATION BY THE COURT OF JUSTICE OF THE CONVENTION OF 27 SEPTEMBER 1968 .
CONSEQUENTLY , IT IS CLEAR THAT THE COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF THE REFERENCE FOR A PRELIMINARY RULING WHICH MUST THEREFORE BE DECLARED INADMISSIBLE WITHIN THE MEANING OF ARTICLE 92 ( 1 ) TOGETHER WITH ARTICLE 103 ( 2 ) OF THE RULES OF PROCEDURE .
Operative part
ON THOSE GROUNDS ,
THE COURT
HEREBY ORDERS AS FOLLOWS :
THE REQUEST FOR A PRELIMINARY RULING MADE BY THE PRESIDENT OF THE TRIBUNALE DI VARESE BY ORDER OF 23 APRIL 1983 IS INADMISSIBLE .