CJEC, 2nd chamber, July 15, 1982, No 228-81

The court (second chamber)

1 By order of 8 july 1981, which was received at the court registry on 6 august 1981, the bundesgerichtshof (federal court of justice) 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 brussels convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters a question on the interpretation of article 27 (2) of that convention, having regard to the provisions of the third paragraph of article 20 thereof in conjunction with those of article 15 of the hague convention of 15 november 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters (tractatenblad 1966, no 91).

2 That question was raised in an appeal on a point of law lodged by Pendy Plastic products (bv) (hereinafter referred to as ' ' Pendy ' '), whose registered office is in helmond in the netherlands, against a decision of the oberlandesgericht (higher regional court) dusseldorf dismissing its application for the issue of an order for the enforcement of a judgment given in default by the netherlands court in ' s-hertogenbosch on 14 september 1979 ordering Pluspunkt Handelsgesellschaft mbH (hereinafter referred to as ' ' pluspunkt ' '), whose registered office is in neuss in the federal republic of germany, to pay Pendy the sum of hfl 29 979.25, plus interest calculated from 6 december 1978 and the costs of the proceedings until the date of that judgment, amounting to hfl 1 042.15.

3 It appears that the document instituting the proceedings which culminated in the judgment by default of the netherlands court was transmitted on 26 march 1979 to the netherlands officier van justitie for the purpose of service. That document, together with the summons to appear at the hearing on 27 april 1979, was to be served on the defendant at 36 kaarster strasse, neuss. On 17 may 1979, the amtsgericht (local court) neuss issued a certificate, in accordance with article 6 (2) of the hague convention of 15 november 1965, ratified by the kingdom of the netherlands and by the federal republic of germany, indicating that it had not been possible to serve the documents in question.

4 The defendant, pluspunkt, failed to enter an appearance and the court in ' s-hertogenbosch enjoined the plaintiff, pendy, by an interlocutory judgment dated 8 june 1979, to prove that the defendant had been able to receive the summons in sufficient time or that all necessary steps had been taken in that respect to enable it to make arrangements for its defence. At the hearing on 20 july 1979, the plaintiff lodged an extract from the commercial register and a communication from the amtsgericht neuss to the effect that the files in its possession showed the defendant ' s address as 36 kaarster strasse.

5 On the basis of that information, the court in ' s-hertogenbosch considered that transmission of the document instituting the proceedings to the officier van justitie, as evidenced by the document issued on 26 march 1979, was sufficient and delivered a judgment in default on 14 september 1979, in respect of which Pendy applied to the german courts for the issue of an enforcement order.

6 In its order of 8 july 1981 the bundesgerichtshof restated the findings of the oberlandesgericht dusseldorf. According to the latter court, the measures taken by the plaintiff to discover the defendant ' s business address and to give proof thereof to the netherlands court were inappropriate, in view of the fact that the commercial register merely mentions the town where a company has its registered office, in this instance neuss, a factor which had not changed in the case of the defendant. Therefore, the procedural principle of the right to a proper hearing was held to have been contravened with regard to the defendant. In the opinion of the oberlandesgericht, the fact that the netherlands court considered service to have been properly effected was not sufficient to justify the issue of an enforcement order under the brussels convention.

7 Those are the circumstances in which the bundesgerichtshof decided to stay the proceedings and to request the court of justice to give a preliminary ruling on the following question:

' ' May recognition of a judgment be refused in accordance with article 27 (2) of the brussels convention where the defendant did not enter an appearance in the proceedings in the adjudicating state and he was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence, even where the court of the state in which the judgment was given established, in accordance with the third paragraph of article 20 of the convention in conjunction with article 15 of the hague convention of 15 november 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, that the defendant had an opportunity to receive the writ in sufficient time to enable him to arrange for his defence?

' '

8 It must be observed in limine that, according to the grounds of the order making the reference, the dispute which the bundesgerichtshof seeks to resolve by way of a reference for a preliminary ruling relates not only to the recognition but also to the enforcement in the federal republic of germany of a judgment given by a netherlands court. In the present case, however, that necessary finding is of very limited scope. The recognition and enforcement of judicial decisions are both governed by title iii of the brussels convention. Article 34, which is concerned with enforcement, provides that an application for the issue of an enforcement order may be refused only for one of the reasons specified in articles 27 and 28, which are concerned with the recognition of judicial decisions.

9 Thus the question raised by the bundesgerichtshof seeks in substance to ascertain whether, under the brussels convention, the court of the state in which enforcement is sought may rely on article 27 (2) of the convention in order to justify a refusal to recognize or enforce a judgment given by the court of another state which has acceded to the convention, or whether it is bound by the conclusions which the adjudicating court drew from the application of the third paragraph of article 20 of the brussels convention and article 15 of the hague convention of 15 november 1965.

10 Article 27 (2) of the brussels convention provides that a judgment given by a court of another contracting state ' ' shall not be recognized... Where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence ' '. Furthermore, article 46 (2) of the same convention requires a party seeking recognition or applying for enforcement, in one member state, of a judgment given in default in another member state to produce the original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings.

11 The second paragraph of article 20 of the brussels convention provides that, where a defendant domiciled in one contracting state is sued in a court of another contracting state and does not enter an appearance, the court must stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to that end. The third paragraph of article 20 provides that the aforegoing provisions are to be replaced by those of article 15 of the hague convention of 15 november 1965 if the document instituting the proceedings or notice thereof had to be transmitted abroad in accordance with that convention.

12 As the bundesgerichtshof has established, that was precisely the case in this instance, since both the kingdom of the netherlands and the federal republic of germany are parties to the hague convention. Article 15 of that convention specifies, in the same way as the second paragraph of article 20 of the brussels convention but in accordance with rules which are far more detailed and more precise, the circumstances in which a document instituting proceedings may be regarded as having been served on a defendant who is domiciled abroad and has failed to enter an appearance.

13 Although they do not seek to harmonize the different systems of service abroad of legal documents which are in force in the member states, the provisions of the brussels convention are designed to ensure that the defendant ' s rights are effectively protected. For that reason, jurisdiction to determine whether the document introducing the proceedings was properly served was conferred both on the court of the original state and on the court of the state in which enforcement is sought. Thus, in accordance with the objective of article 27 of the convention, the court of the state in which enforcement is sought must examine the question posed by paragraph (2) of that article, notwithstanding the decision given by the court of the original state on the basis of the second and third paragraphs of article 20. That examination is subject only to the limitation set by the third paragraph of article 34 of the convention to the effect that the foreign judgment may under no circumstances be reviewed as to its substance.

14 Accordingly, the answer to the question submitted by the bundesgerichtshof must be that the court of the state in which enforcement is sought may, if it considers that the conditions laid down by article 27 (2) of the brussels convention are fulfilled, refuse to grant recognition and enforcement of a judgment even though the court of the state in which the judgment was given regarded it as proven, in accordance with the third paragraph of article 20 of that convention in conjunction with article 15 of the hague convention of 15 november 1965, that the defendant, who failed to enter an appearance, had an opportunity to receive service of the document instituting the proceedings in sufficient time to enable him to make arrangements for his defence.

Costs

15 The costs incurred by the governments of the federal republic of germany, the italian republic and the united kingdom, and by the commission, 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, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (second chamber),

In answer to the question submitted to it by the bundesgerichtshof by order of 8 july 1981, hereby rules:

The court of the state in which enforcement is sought may, if it considers that the conditions laid down by article 27 (2) of the brussels convention are fulfilled, refuse to grant recognition and enforcement of a judgment, even though the court of the state in which the judgment was given regarded it as proven, in accordance with the third paragraph of article 20 of that convention in conjunction with article 15 of the hague convention of 15 november 1965, that the defendant, who failed to enter an appearance, had an opportunity to receive service of the document instituting the proceedings in sufficient time to enable him to make arrangements for his defence.