Case C-172/91 Ivana Jarošová Žiga Pečuh Jitka Straková

Parties  Volker Sonntag Vs.  Hans Waidmann  Elisabeth Waidmann  Stefan Waidmann

Articles Brussels Convention – Article 1/1 – Article 27/2 – Article 37/2

What happend  Thomas Waidmann suffered a fatal accident during a school trip to Italy on 8 June 1984  Criminal proceedings against Mr Volker Sonntag, who caused death by negligence

Appeal  If the decision were unfavourable, he was entitled to be relieved of his obligation to pay damages  Dismissed appeal – criminal judgment is related to a civil matter  Civil claim in sufficient time

Questions for a preliminary ruling Does a. 37/2 of Convention preclude any appeal against the decision given on appeal under a. 36, even where the domestic law of the state allows such parties to appeal?

Where the holder of public office is personally sued by the person for damages, does an action constitute a civil matter within meaning of a. 1/1 of Convention

If the defendant is given notice that in criminal proceedings a claim will be made is such a document capable of being treated as a document which instituted the proceeding according to a. 27/2 of Convention?

The defendant answered to the criminal charges but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his council?

Second question  Convention shall apply in civil and commercial matters  Civil matters – independent concept to be interpreted by reference to objectives and scheme of the Convention then to the general principles

 A civil action for compensation for injury to an individual resulting from a criminal offence is civil in nature (a.5/4 )  The author of the damage must be regarded as a public authority which acted in the exercise of public powers

Opinion of the court  The teacher has the status of civil servant, but doesn‘t always exercise public powers  His function doesn‘t constitute an exercise of public powers  A teacher in a State school assumes the same functions vis-á-vis his pupils

 Teacher doesn‘t exercise public powers  The activity of supervising pupils doesn‘t affect the characterization of the dispute in the main proceeding according to a. 1/1 of the Convention  => civil matters

CIVIL MATTERS COVER AN ACTION FOR DAMAGES BROUGHT BEFORE CRIMINAL COURT

The first question  Art If enforcement is authorised, the party against whom enforcement is sought may appeal against the decision within one month of service thereof.  Appeal according to Art. 37(2) – on a point of law

Narrow interpretation of Art.37(2) – under the general scheme and in the light of principal objectives Case 148/84 – enforcement procedure – autonomous and complete system

 Preclusion of a third party from bringing an appeal under Art. 36 – contrary to the system and principal objectives  => Yes, ART. 37(2) PRECLUDES ANY APPEAL BY THIRD PARTIES AGAINST JUDGEMENT GIVEN ON THE APPEAL UNDER ART. 36

The third and the fourth question  Art. 27(2) – the judgement shall nto be recognized (…) if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence => no opportunity to defend before the court = default of appereance

 Art. II(1) of the Protocol annexed – persons domiciled in a Contracting State who are being prosecuted in the criminal courts of another Contracting State (…) may be defended by person qualified to do so  No distinction betweeen the criminal procesution and the civil-law claim

 Defendant not in default-> Art.27(2) inapplicable  => NON-RECOGNITION OF THE JUDGEMENT IS POSSIBLE ONLY WHEN THE DEFENDANT WAS IN DEFAULT OF APPEARANCE IN THE ORIGINAL PROCEEDINGS

Opinion of Advocate General Very important in practice Court is not obligated to take same opinion as Advocate General

Second question LTU v Eurocontrol (Case 29/76) Netherlands v Ruffer (Case 814/79)

First question May an interested third party contest, under the Article 37(2), the judgment given on the appeal provided for in Article 36 even though he was merely an intervener in that appeal, where domestic law privdes for such an appeal? Deutsche Genossenschaftsbank (Case 148/84 Van Dalfsen v van Loon (Case C-183/90)

Third and fourth question Klomps v Michel (Case 166/80) Lancaray v Peters (Case C-305/88)

25 Thank you for your attention PROJECT „THEORY – SKILL – EXPERIENCE“ reg. No. CZ.1.07/2.2.00/ , Operational Program Education for Competitiveness