CJEC, 4th chamber, June 11, 1985, No 49-84

THE COURT (fourth chamber)

1 By a judgment dated 17 february 1984, which was received at the court on 24 february 1984, the hoge raad der nederlanden (supreme court of the Netherlands) requested 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 '), on several questions concerning the interpretation of article 27 (2) of the convention.

2 Those questions were raised in the course of proceedings pending before that court between mr and mrs Debaecker on the one hand, and mr Bouwman on the other hand.

3 Mr and mrs Debaecker had let commercial premises in Antwerp to mr Bouwman, a national of the Netherlands, for a period of nine years from 15 october 1980. On 21 september 1981 mr Bouwman left the premises (in which he had established his residence), without giving prior notice and without leaving any forwarding address. On 24 september 1981 he was summoned to appear on 1 october 1981 before the vrederechter (cantonal judge), Antwerp, by a writ which was served on him, pursuant to article 37 of the belgian judicial code, at the politiecommissariat (police station), Antwerp, since he was still registered as a resident of Antwerp. In a letter dated 25 september 1981 and received by the plaintiffs ' lawyer on 28 september 1981, mr Bouwman terminated the tenancy, returned the keys of the premises and stated that his new address was a post office box number in essen, Belgium. The plaintiffs ' lawyer made no attempt to inform the defendant at that new address that he had been summoned to appear on 1 october before the vrederechter in Antwerp, and on that date the defendant was ordered, by judgment in default of appearance, to pay to mr and mrs Debaecker damages of bfr 1 072 900.

4 On 30 november 1981 the president of the arrondissementsrechtbank (district court) in breda (the Netherlands) made an order, on an application by mr and mrs Debaecker, for the enforcement of the judgment in default given by the vrederechter in Antwerp. Mr Bouwman appealed against that order on 6 january 1982 and it was set aside by the arrondissementsrechtbank on 12 october 1982.

5 Mr and mrs Debaecker appealed to the hoge raad, which stayed the proceedings and referred to the court the following questions for a preliminary ruling:

' 1. Is the requirement, laid down in article 27 (2) of the convention on jurisdiction and the enforcement of judgments in civil and commercial matters, that service of the document which instituted the proceedings should have been effected in sufficient time inapplicable if service was effected within a period prescribed by the court of the state in which the judgment was given and/or the defendant resided, exclusively or otherwise, within the jurisdiction of that court or in the same country as that court?

If question 1 is answered in the negative:

2 (a) In relation to the question whether, in a particular case, there are exceptional circumstances which warrant the conclusion that, although due service was effected, as provided for in article 27 (2), it was none the less inadequate for the purpose of causing the time required in that provision to begin to run, is account to be taken only of circumstances which existed at the time of service and which the plaintiff could take into consideration at that time?

If question 2 (a) is answered in the negative:

2 (b) Can the plaintiff be required as a result of circumstances which arose after service was effected, in particular notification to the plaintiff of the defendant ' s address, to take further steps to inform the defendant of the impending action, so that if such steps are not taken the time required by article 27 (2) does not begin to run?

If question 2 (b) is answered in the affirmative:

2 (c) What criterion must be applied in that regard? In particular, does the fact that the defendant was responsible for the failure of the duly served document to reach him prevent the court, where, for example, the plaintiff was aware that the defendant had left the address stated to be his place of residence, from considering that further steps as referred to above were required? '

6 Written observations were submitted by the parties to the main proceedings, the government of the federal republic of Germany, the united kingdom and the commission of the european communities.

7 In question 1 the hoge raad asks whether the requirement, laid down in article 27 (2) of the convention, that service of the document which instituted the proceedings should have been effected in sufficient time is inapplicable if service was effected within a period prescribed by the court of the state in which the judgment was given and/or the defendant resided in that state.

8 The plaintiffs in the main proceedings consider that the answer to the first question should be that article 27 (2) of the convention is inapplicable where, at the time of service of the document which instituted the proceedings, the defendant was resident within the jurisdiction of the adjudicating court or at least where (as in the present case) he had his sole residence there.

9 The defendant in the main proceedings disputes that interpretation, contending that there is nothing in the wording of article 27 (2) to suggest that the rules laid down by the convention in order to guarantee the defendant ' s right to a fair hearing should be applied solely where the defendant is resident in a contracting state other than that of the adjudicating court. If that were so, the court in which enforcement was sought would have no discretion to decide whether service was effected in sufficient time where both parties resided in the same contracting state. The defendant ' s view is shared by the commission, the federal republic of Germany and the united kingdom, which stresses that in its judgment of 16 june 1981 in case 166-80 (klomps v michel (1981) ecr 1593) the court has already by implication acknowledged that article 27 (2) applies regardless of whether the parties reside in different states or in the same state.

10 First of all, it should be stated that there is nothing in the wording of article 27 (2) - which does not lay down any condition as regards the defendant ' s place of residence - to suggest that the question asked by the hoge raad should be answered in the affirmative. Although the convention is, as is clear from the preamble, intended to ' secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals ', that aim cannot, according to a series of decisions of the court, be attained by undermining in any way the right to a fair hearing.

11 It follows from the wording of article 27 that the courts of a contracting state may refuse to recognize a judgment only on one of the grounds expressly mentioned in that provision. One of those grounds is that laid down in paragraph (2), in order to ensure the adequate protection of the rights of a defendant against whom judgment is given in default of appearance abroad. Article 27 (2) provides that a judgment shall not be recognized '... 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 '. That provision takes account of the fact that certain contracting states make provision for the fictitious service of process where the defendant has no known place of residence. The effects that are deemed to follow from such fictitious service vary and the probability of the defendant ' s actually being informed of service, so as to give him sufficient time to prepare his defence, may vary considerably, depending on the type of fictitious service provided for in each legal system.

12 For that reason article 27 (2) must be interpreted as being intended to protect the right of a defendant to defend himself when recognition of judgment given in default in another contracting state is sought, even if the rules on service laid down in that contracting state were complied with.

13 The answer to the first question must therefore be that the requirement, laid down in article 27 (2) of the convention, that service of the document which instituted the proceedings should have been effected in sufficient time is applicable even where service was effected within a period prescribed by the court of the state in which the judgment was given or where the defendant resided, exclusively or otherwise, within the jurisdiction of that court or in the same country as that court.

14 In question 2 (a) the hoge raad asks whether, in assessing whether there are exceptional circumstances which warrant the conclusion that, although due service was effected as provided for in article 27 (2), it was none the less inadequate for the purpose of causing the time required in that provision to begin to run, account is to be taken only of circumstances which existed at the time of service and which the plaintiff could take into consideration at that time.

15 The parties who have submitted observations to the court refer on this point to the judgment in klomps v michel (cited above) in which the court ruled that, although the court in which enforcement is sought may as a general rule confine itself to examining whether the period reckoned from the date on which service was duly effected allowed the defendant sufficient time for his defence, it is none the less also required to consider whether, in a particular case, there are exceptional circumstances which warrant the conclusion that, although service was duly effected, it was inadequate for the purposes of enabling the defendant to take steps to arrange for his defence and, accordingly, could not cause the time stipulated by article 27 (2) to begin to run.

16 The plaintiffs in the main proceedings interpret that ruling as meaning that no account may be taken of circumstances which did not become apparent until after service was effected, and that due service which at the date on which it was effected was considered adequate, in the light of the circumstances existing at that time, for the purpose of causing the time stipulated by article 27 (2) to begin to run, may not be invalidated as a result of circumstances which subsequently supervene. The serious consequences of deciding otherwise would be exacerbated by the fact that the defence provided for under article 27 (2) may be pleaded not only in proceedings for enforcement but also in proceedings in which the recognition of a judgment is sought.

17 The opinion of the plaintiffs in the main proceedings is in part shared by the commission, on grounds relating to legal certainty, to the need for a restrictive interpretation of article 27 (2) - since it is an exception to the general rule prohibiting any fresh assessment of the facts at the enforcement stage - and to the fact that guarantees are already provided in the national rules on the service of process. The commission concedes, however, that it may be possible to take into account certain wholly exceptional circumstances which occur after service and for which the defendant cannot be held responsible.

18 The defendant in the main proceedings, the federal republic of Germany and the united kingdom all propose that the question should be answered in the negative, stressing in particular that article 27 (2) can only provide complete protection for a defendant if all the circumstances, including those occurring after service, are taken into account.

19 With regard to this question, it should be pointed out first that, if the circumstances to be taken into account were confined to those which were known at the time of service, there would be a danger of interpreting the requirement of service in sufficient time in such a restrictive and formalistic manner that it would in fact coincide with the requirement of due service, thus negating one of the safeguards laid down by the convention for the protection of the defendant.

20 Accordingly, in order to ascertain whether the requirement of service in sufficient time was fulfilled - that requirement being laid down precisely in order to ensure that the defendant ' s rights are effectively protected - regard must be had to facts which, although occurring after service was effected, may none the less have had the effect that service did not in fact enable the defendant to arrange for his defence.

21 That view finds further support in klomps v michel, where the court ruled that, in ascertaining whether service was effected in sufficient time, a court might take account ' of all the circumstances of the case in point, including the means employed for effecting service, the relations between the plaintiff and the defendant or the nature of the steps which had to be taken in order to prevent judgment from being given in default '. An appraisal of the steps which had to be taken in order to prevent judgment from being given in default is bound to concern factors arising after service was effected.

22 The answer to question 2 (a) must therefore be that the court in which enforcement is sought may, in examining whether service was effected in sufficient time, take account of exceptional circumstances which arose after service was duly effected.

23 In question 2 (b) the hoge raad asks whether the plaintiff can be required, as a result of circumstances which arose after service was effected, to take further steps to inform the defendant of the impending action, so that if such steps are not taken the time required by article 27 (2) does not begin to run. Question 2 (c) asks whether the fact that the defendant was responsible for the failure of the duly served document to reach him prevents the court, where, for example, the plaintiff was aware that the defendant had left the address stated to be his place of residence, from considering that further steps as referred to in question 2 (b) should have been taken.

24 With regard to question 2 (b), the plaintiffs in the main proceedings observe that no such obligation is provided for in the applicable national law or in the convention itself and consider that a rule of that kind would impair legal certainty in the field of procedural law. In addition, they argue that there is no uniform practice in the legal systems of the contracting states, some of which are more formalistic than others and thus less inclined to require any steps to be taken which are not prescribed by the law or the convention. In any event, say the plaintiffs, although it may be expected that a lawyer might notify the opposite party or request an adjournment in a case such as this, a lawyer cannot be reproached for failing to do so.

25 The commission also considers that such an obligation would seriously jeopardize legal certainty. In its view, no consequence under procedural law should flow from the fact that the plaintiff does not notify the defendant when he learns after service that the defendant may be contacted at another address.

26 The defendant in the main proceedings, the federal republic of Germany and the united kingdom, on the other hand, propose an affirmative answer, stressing inter alia that the purpose of article 27 (2) is to guarantee not merely formal service but the right to be heard and thus the opportunity of presenting a defence. They therefore consider that every effort must be made to prevent judgment from being given against a defendant without his having had an opportunity of defending himself.

27 On that point it must be borne in mind that the question whether service was effected in sufficient time is a question of fact and therefore cannot be determined on the basis of the domestic law of the adjudicating court or on the basis of the domestic law of the court in which enforcement is sought. However, the convention does not impose on the plaintiff any obligation to take steps such as those referred to in question 2 (b). The failure to take such steps is in reality merely a factor which must be taken into account in order to establish whether service was effected in sufficient time.

28 Seen in that light, the fact that the plaintiff, after service, learns of the defendant ' s new address does not compel him to take any further steps, but renders his subsequent behaviour important for the purpose of determining whether service was effected in sufficient time. By notifying the defendant at his new address, the plaintiff ensures that the court in which enforcement is sought cannot decide that the defendant ' s change of address is an exceptional circumstance which prevents the service effected at his former address from being regarded as having been effected in sufficient time.

29 As regards question 2 (c), the plaintiffs in the main proceedings consider that, even if the plaintiff is bound to take further steps to notify the defendant, failure to do so does not necessarily result in the refusal of recognition or enforcement of the judgment if it is the defendant ' s fault that the plaintiff was unaware at the time of service of the address at which the defendant could have been contacted. They argue that it is not enough for the defendant to give a post office box number. The commission shares that view and considers that, if the defendant is responsible for the fact that he did not receive the document which was duly served, the plaintiff is under no obligation to take further steps, even if he subsequently discovers the defendant ' s new address.

30 The defendant in the main proceedings, the federal republic of Germany and the united kingdom consider that the defendant ' s behaviour is one of the circumstances which the court in which enforcement is sought may take into account in assessing whether service was effected in sufficient time, and its effect must be evaluated by that court in the light of the requirement that the defendant ' s rights should be effectively protected.

31 In view of the fact that article 27 (2), as has already been stated, seeks to enable a defendant to defend himself effectively, the defendant ' s behaviour may not be used as a basis for considering that service was effected in sufficient time even though the plaintiff subsequently became aware that the defendant could be reached at a new address. To admit such a proposition would be tantamount to acknowledging the existence of a presumption that service was effected in sufficient time. Although it may rightly be presumed that service was effected in sufficient time where the plaintiff did not know where to reach the defendant, such a presumption would clearly be contrary to the principle that the defendant ' s rights should be protected if, after service, the plaintiff learned where the defendant could be reached.

32 Thus the defendant ' s behaviour cannot automatically rule out the possibility of taking into account exceptional circumstances which warrant the conclusion that service was not effected in sufficient time. Instead, such behaviour may be assessed by the court in which enforcement is sought as one of the matters in the light of which it determines whether service was effected in sufficient time. It will therefore be for that court to assess, in a case such as the present, to what extent the defendant ' s behaviour is capable of outweighing the fact that the plaintiff was apprised after service of the defendant ' s new address.

33 In view of the foregoing considerations, the answer to questions 2 (b) and 2 (c) must be that the fact that the plaintiff was apprised 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.

Costs

34 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 action pending before the national court, costs are a matter for that court.

On those grounds,

The court (fourth chamber),

In answer to the questions submitted to it by the hoge raad der nederlanden by judgment of 17 february 1984, hereby rules:

(1) The requirement, laid down in article 27 (2) of the convention on jurisidiction and the enforcement of judgments in civil and commercial matters, that service of the document which instituted the proceedings should have been effected in sufficient time is applicable where service was effected within a period prescribed by the court of the state in which the judgment was given or where the defendant resided, exclusively or otherwise, within the jurisdiction of that court or in the same country as that court.

(2) In examining whether service was effected in sufficient time, the court in which enforcement is sought may take account of exceptional circumstances which arose after service was duly effected.

(3) The fact that the plaintiff was apprised 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.