CJEC, 5th chamber, July 10, 1986, No 198-85

The court (fifth chamber)

1 By an order of 14 june 1985, which was received at the court on 26 june 1985, the hof van cassatie (court of cassation) of Belgium referred to the court for a preliminary ruling under 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 convention ') three questions concerning the interpretation of the second paragraph of article 33 of the convention.

2 The questions arose in the course of an appeal in cassation brought by mr Carron against a judgment of 14 june 1984 in which the rechtbank van eerste aanleg (court of first instance), antwerp, dismissed his application to set aside the order made by the same court on 27 july 1982.

3 That order, issued on the application of the Federal Republic of Germany, authorized the enforcement in Belgium of a judgment of 9 march 1982 in which the landgericht (regional court) duisburg ordered mr Carron to pay the Federal Republic of Germany damages in the sum of dm 5 240 000.

4 In support of his application to set aside the enforcement order mr Carron argued that the proceedings were void on the ground that in the application initiating the proceedings the Federal Republic of Germany had failed to give an address for service. In its judgment of 14 june 1984 the rechtbank van eerste aanleg held, dismissing mr Carron ' s application, that the requirements of the second paragraph of article 33 of the convention had indeed been fulfilled, by the inclusion of an address for service in the document giving notice of the enforcement order.

5 The hof van cassatie decided to refer the following questions to the court for a preliminary ruling:

' 1. Is the question of the time at which and the manner in which an address for service of process is to be given, for the purposes of the second paragraph of article 33 of the convention on jurisdiction and the enforcement of judgments in civil and commercial matters to be determined by the law of the state in which enforcement is sought?

2. If question 1 is answered in the affirmative, are the rules concerning the imposition of a penalty also governed by the state in which enforcement is sought?

3. If question 1 is answered in the negative, at what time and in what manner is an address for service of process to be given and what penalty, if any, is to be imposed for failure to comply?

'

The first question

6 Mr Carron and the commission emphasize that the convention seeks to put into effect a standard enforcement procedure in all the member states; hence the court in the state in which enforcement is sought may not apply national rules of procedure except where the convention expressly calls on it to do so. Since article 33 contains no such provision as regards the time at which an address for service should be given, the first question must be answered in the light of the aims of that article. It seeks to enable the defendant to appeal against the enforcement order at the earliest opportunity, and accordingly requires that an address for service of process be given, at the latest, before the order granting enforcement is issued.

7 The german government and the united kingdom, on the other hand, take the view that according to the very words of article 33 of the convention the rules governing the furnishing of an address for service are to be laid down by the law of the state in which enforcement is sought. In view of the vagueness of the article as to the time at which the address for service should be given, the german government and the united kingdom believe that regard should be had to the fact that the furnishing of such an address is of no importance to the party against whom enforcement is sought until the commencement of the period allowed for lodging an appeal against the enforcement order under article 36 of the convention - that is to say, until the order is due to be served on him.

8 It must be pointed out that in articles 31 to 49 the convention establishes an enforcement procedure common to all member states. At the initial ex parte stage, that procedure enables the applicant seeking enforcement of a judgment in another member state to obtain satisfaction swiftly. At the second stage, involving proceedings inter partes, it guarantees the rights of the party against whom enforcement is sought by setting up an appeal procedure. Under that system the duty on the applicant ' s part to give an address for service or to appoint a representative ad litem must enable the party against whom enforcement has been ordered to lodge an appeal under the convention without having to embark on formalities outside the confines of his home jurisdiction. Although the convention sets those aims, to which effect must be given in all member states, it must be observed that it does not lay down detailed rules for implementing the procedure but refers expressly, on several points, to the law of the state in which enforcement is sought.

9 Thus the first and second paragraphs of article 33 of the convention read as follows: ' the procedure for making the application shall be governed by the law of the state in which enforcement is sought. The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the state in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem. '

10 It is clear from those provisions that the law of the state in which enforcement is sought governs the entire procedure for making the application and that the furnishing by the applicant of an address for service of process is part of that procedure. Where the law of the state in which enforcement is sought does not indicate the exact time at which an address for service is to be given, it must be held, in accordance with the aims of the convention, that it must be given sufficiently early to ensure that the proceedings are not improperly delayed and that the rights of the party against whom enforcement is sought are safeguarded. At the latest it must be given when the decision authorizing enforcement is served.

11 The answer to be given to the first question submitted by the national court must therefore be that the second paragraph of article 33 of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that the obligation to give an address for service of process laid down in that provision must be fulfilled in conformity with the rules laid down by the law of the state in which enforcement is sought, and if that law is silent as to the time at which that formality must be observed, no later than the date on which the decision authorizing enforcement is served.

The second question

12 Mr Carron takes the view that since it is community law which requires that an address for service should be given before a decision authorizing enforcement has been issued, it is likewise community law which determines the sanction attaching to any failure to do so. In view of the imperative wording of the second paragraph of article 33, and the requirement under article 35 of the convention that the court to which application is made must ' without delay ' notify its decision to the applicant, the sanction can only be that the application is held to be void.

13 The court must agree with the german government and the united kingdom that inasmuch as the convention provides no sanction for failure to comply with article 33 that sanction must, like the other procedural rules referred to in that article, be determined by the law of the state in which enforcement is sought.

14 The law of the state in which enforcement is sought must, however, conform to the aims of the convention; thus the sanction provided for may neither cast doubt on the validity of the enforcement order nor in any way prejudice the rights of the party against whom enforcement is sought.

15 The answer to the second question submitted by the national court must therefore be that the consequences of a failure to comply with the rules on the furnishing of an address for service are, by virtue of article 33 of the convention, governed by the law of the state in which enforcement is sought, provided that the aims of the convention are respected.

Third question

16 In view of the answers to the first two questions raised by the national court, it is unnecessary to answer the third question.

Costs

17 The costs incurred by the Federal Republic of Germany, the united kingdom and the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the proceedings before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (fifth chamber),

In answer to the questions submitted to it by the hof van cassatie by order of 14 june 1985, hereby rules as follows:

(1) The second paragraph of article 33 of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that the obligation to give an address for service of process laid down in that provision must be fulfilled in conformity with the rules laid down by the law of the state in which enforcement is sought, and if that law is silent as to the time at which that formality must be observed, no later than the date on which the decision authorizing enforcement is served.

(2) The consequences of a failure to comply with the rules on the furnishing of an address for service are, by virtue of article 33 of the convention, governed by the law of the state in which enforcement is sought, provided that the aims of the convention are respected.