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Recognition is excluded where “the document which instituted the proceedings or an equivalent document has not been modified in sufficient time and in such a way as to enable the defendant to arrange for his defense, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so” (Art. 45(1)( b) Regulation No 1215/2012). The Brussels Convention  …

Protection of defendant in default of appearance

Recognition is excluded where “the document which instituted the proceedings or an equivalent document has not been modified in sufficient time and in such a way as to enable the defendant to arrange for his defense, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so” (Art. 45(1)( b) Regulation No 1215/2012). The Brussels Convention required that the document instituting the proceedings should not have been “served on the defaulting defendant in a regular and timely manner so that he may defend himself”.

The regulation no longer requires proper notification  and introduces an exception to refusal of recognition and enforcement of the judgment, where the defaulting defendant has failed to lodge an appeal against the judgment in the State of origin, although he was in a position to do so . Previously, under the Brussels Convention, the Court of Justice ruled that recognition in one Member State of a judgment given by default in another Member State had to be refused where the document instituting the proceedings had not been duly served on the defendant in good time, even if the latter had not availed himself of the remedies available .  Henceforth, as Article 45 sets out an express condition of service on the defaulting defendant only in relation to the document instituting proceedings and not in relation to the judgment by default, the Court considers that  in order to be able to bring an action against a judgment rendered against him by default, the defendant must have had actual knowledge of the content of the judgment, by means of service effected in sufficient time and in such a way as to enable him to defend himself before the courts of the State in which the judgment was given . Consequently, the court addressed may refuse to recognize or enforce the judgment of the court of origin, on the grounds of non-respect of the defaulting defendant's rights of defense (a) where failure to serve the document instituting proceedings in due time, or to serve it in due time but without allowing the defendant to defend himself, is at the origin of the failure to appear, or (b) when the failure to serve the judgment rendered by default under the same conditions results in the defaulting defendant not knowing the content of the judgment in sufficient time to defend himself, when it was not possible to do so. 

Thus, the application of Article 45(1)(b), which does not impose any residence requirements , is subject to the existence of a document instituting proceedings, served in sufficient time .

The concept of a document instituting proceedings or an equivalent document refers to the document or documents, the service of which on the defendant, effected in sufficient time, enables him to assert his rights before an enforceable judgment is given in the State of origin . Article 45(1)(b) does not require proof that the defendant actually had knowledge of the document instituting the proceedings, but only that a reasonable time has elapsed . The court addressed must only take into account the amount of time available to the defendant, in order to avoid an enforceable judgment being rendered by default. In effect, the defendant must have been given the opportunity to defend himself within a reasonable period of time. The court addressed must therefore ensure that there are no exceptional circumstances from which it can be inferred that service did not put the defendant in a position to begin his defense  or that exceptional facts or circumstances occurred after service, which could have prevented the defendant from being effectively put in a position to prepare his defense . The court may take into consideration the method of service used, the relationship between the plaintiff and the defendant, or the nature of the action undertaken to avoid a judgment by default . The fact that the foreign judgment is accompanied by the certificate (provided for in Article 53 of Regulation No 1215/2012) issued by the court of origin attesting that the judgment is enforceable does not limit the scope of the assessment that must be made, by virtue of the dual control , by the court of the Member State addressed, once it has analyzed the ground for challenge referred to in Article 45(1)(b) of the regulation .

The implementation of Article 45(1)(b) also presupposes that the court of origin has rendered a judgment by default. In practice, this means that the defendant must not have appeared or been represented in the proceedings before the court of the State of origin. The ground for refusal of recognition referred to in Article 45(1)(b) cannot be invoked when the defendant has appeared, or at least when he has been informed of the elements of the dispute and has been able to organize his defense .  Thus, a defendant who is unaware of the proceedings brought against him, and for whom a lawyer whom he has not appointed appears before the court of origin, finds it absolutely impossible to defend himself, and must therefore be considered to be in default . According to the Court, when a defendant, through his defense counsel, takes a position at the hearing on the complaints made against him, this position must, as a matter of principle, be considered as an appearance in the proceedings as a whole, thereby precluding non-recognition of the foreign judgment . On the other hand, the court in the State addressed may refuse to recognize the foreign judgment where the defendant has lodged an opposition to the default judgment and a court in the State of origin has declared the opposition inadmissible on the grounds that the period for taking action has elapsed, since in this case the rejection of the opposition as inadmissible means that the default judgment remains “intact”  .

Lastly, the issuing of a judgment by default against an untraceable defendant who has been served with the document instituting the proceedings by way of public notice in accordance with national law is not contrary to EU law, provided that the court hearing the case is satisfied that all the inquiries required by the principles of diligence and good faith have been carried out in order to locate the defendant .

Case C-283/05  ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS), Judgment of 14 December 2006, LawLex200900001407JBJ: paragraph 1(b) of the regulation aims to guarantee effective respect for the rights of the defense, without requiring the service of the document instituting proceedings to be in order.

The concept of “proceedings to challenge a judgment” includes an application for relief when the period for bringing an ordinary challenge has expired, Case C-70/15 Lebek v Domino, Judgment of 7 July 2016, LawLex201600001268JBJ.

Case 166/80 Klomps, Judgment of 16 June 1981, LawLex200900001584JBJ.

Case C-619/10 Trade Agency Ltd, Judgment of 6 September 2012, LawLex201200002042JBJ.

Case C-172/-91 Volker Sonntag v Waidmann (Consorts), Judgment of 21 April 1993,   LawLex200900000718JBJ

Case C-78/95 Bernardus Hendrikman v Magenta Druck & Verlag GmbH, Judgment of 10 October 1996, LawLex200900001176JBJ.

Case C-172/-91 Volker Sonntag v Waidmann (Consorts), Judgment of 21 April 1993,   LawLex200900000718JBJ.

Case C-292/10 Cornelius de Visser, Judgment of 15 March 2012, LawLex201200000644JBJ.

Case C-78/95 Bernardus Hendrikman and Feyen, Judgment of 10 October 1996, LawLex200900001176JBJ: “the proper time for a defendant to have an opportunity to defend  himself is the time at which proceedings are commenced. The possibility  of having recourse, at a later stage, to a legal remedy against a  judgment given in default of appearance, which has already become  enforceable, cannot constitute an equally effective alternative to  defending proceedings before judgment is given”

Case C-283/05  ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS), Judgment of 14 December 2006, LawLex200900001407JBJ.

 Case 49/84 Debaecker v Cornelis Gerrit Bouwman, Judgment of 11 June 1985, LawLex200900002198JBJ: Article 45, paragraph (1()b) which aims to ensure adequate protection of the rights of the defense of a defendant sentenced in absentia abroad, taking into account the diversity of - notably fictitious - notification mechanisms existing within the EU, must be able to benefit both the defaulting defendant domiciled in a Member State, and one whose domicile is in a third country.

In the EU, service of documents is governed by Regulation No 1393/2007 of 13 November 2007, which replaces Regulation No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

Case C-474/93 Hengst Import BV v Anna Maria Campese, Judgment of 13 July 1995, LawLex200900000970JBJ: The “decreto ingiuntivo”, together with the application instituting the  proceedings, which starts time running for the defendant to oppose the  order without the plaintiff being able to obtain an enforceable order  before the expiry of that time, must be regarded as the document which  instituted proceedings; Case 166/80 Klomps, Judgment of 16 JUne 1981, LawLex200900001584JBJ, the concept of “document instituting proceedings” within the meaning of Article 45(1)(b) of the regulation includes the order for payment (Zahlungsbefehl) under German law, service of which enables the claimant, under the law of the court of origin, to obtain, in the event of default by the defendant, a judgment that can be recognized and enforced in accordance with the provisions of the regulation, but excludes a judgment authorizing enforcement (Vollstreckungsbefehl), issued following notification of this order for payment and which would, in itself, be enforceable.

In assessing the “due time” (temps utile) for the defendant to defend himself, the court of the requested State is not bound by the legal deadlines set by its national law, See in this sense, French case Cass. 1re civ., 3 November 1977, Sofraco (Sté) v Pluimvee Export Coolen BV (Sté), LawLex200900003541JBJ.

Case 49/84 Debaecker v Cornelis Gerrit Bouwman, Judgment of 11 June 1985, LawLex200900002198JBJ, the fact that the plaintiff was informed of the defendant's new address after service was effected, and the fact that the defendant was  responsible for the failure of the duly served document to reach him are  matters which the court in which enforcement is sought may take into  account in assessing whether service was effected in sufficient time.

European Business Law

373. Protection of defendant in default of appearance

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Les décisions de justice citées dans ce paragraphe :

373. Protection of defendant in default of appearance

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise