CELEX: 61994CJ0275
Brussels Convention
Interpretation of Article 47(1)
Documents to be produced by a party applying for enforcement
Obligation to produce proof of service of the judgment delivered
Possibility of producing proof of service after the application has been made

By order of 30 September 1994, received at the Court on 11 October 1994, the Hof van Cassatie van Belgïe (Belgian Court of
Cassation) 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, two questions on the interpretation of Article 47(1) of that convention (OJ 1978 L 304, p. 17), as amended by the
Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and
Northern Ireland (OJ 1978 L 304, p. 1 and ─ in its amended form ─ p. 77, hereinafter
the Convention).
Those questions were raised in proceedings between Mr Van der Linden, a Belgian national, at the material time engaged in
the resale of motor vehicles at Blankenberge (Belgium), and the Berufsgenossenschaft der Feinmechanik und Elektrotechnik,
a German insurance company (hereinafter
the insurer).  Those proceedings concern the enforcement in Belgium of two judgments given in default on 25 May and 1 September 1976
by the Landgericht (Regional Court) Bonn, ordering Mr Van der Linden to pay the insurer, first, the sum of DM 45 428.25 together
with interest at the rate of 4% from 12 March 1976 and, second, the sum of DM 2 190.75 together with interest at the rate
of 4% from 20 August 1976.
The first of those sums represents the medical expenses incurred as a result of injuries caused to Mr Rudolf Lempges, a policy-holder
with the insurer, in a collision which occurred in Germany on 5 February 1973 between his vehicle and that of Mr Van der Linden,
which was being driven by a third person.  The second sum represents the legal costs incurred in those proceedings.
On 2 February 1982, upon application by the insurer, those judgments were rendered enforceable in Belgium by decision of the
Rechtbank van Eerste Aanleg (Court of First Instance), Bruges (hereinafter
the Rechtbank).
Mr Van der Linden lodged an appeal against that decision.  He complained, in particular, that the Rechtbank had allowed the
application for enforcement despite the fact that, contrary to the requirements of Article 47(1) of the Convention, no document
had been produced to show that the default judgments had been served and were enforceable.
By judgment of 30 June 1993 the Rechtbank declared Mr Van der Linden's appeal admissible but unfounded.  It found that, although
Mr Van der Linden had probably been entitled to plead that no proof of service of the default judgments of 25 May and 1 September
1976 had been produced when the
ex parte
application was made, the insurer had proceeded on 6 January 1987 (that is to say, during the course of the appeal proceedings)
to re-serve the judgments in accordance with the rules of Belgian domestic law.  According to the Rechtbank, Article 47(1)
of the Convention had thus been complied with, so that the judgment challenged should be upheld, even though it had been given
on the basis of incomplete documentation.
Mr Van der Linden appealed against that decision to the Hof van Cassatie van Belgïe.  He contended that, as a matter of law,
the Rechtbank could not decide that the insurer could still regularize the procedure by effecting service during the course
of the appeal proceedings, since it follows from Articles 46(1) and 47(1) of the Convention that a copy of the judgment and
the record of service must be lodged at the same time as the application for enforcement of the judgment, and that service
of the judgment must be effected before the application for enforcement is lodged.
The Hof van Cassatie van Belgïe decided to stay proceedings and to refer the following questions to the Court for a preliminary
ruling:
1.
Must Article 47(1) of the Convention of 27 September 1968 between the Member States of the European Economic Community on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters be interpreted as meaning that the court before
which enforcement is sought may order the enforcement of a judgment given in another State only if, either together with the
application or before a decision is given on the application, the document referred to in Article 47(1) and in particular
proof of service are also produced?
2.
If the answer to Question 1 is in the negative must that article be interpreted as meaning that, notwithstanding provisions
of national law, the requirement to produce the document is not satisfied where the decision is served only after the application
was made and the document evidencing service was drawn up and produced only after a decision was given by the court before
which enforcement is sought on the application and the party against whom enforcement is sought has lodged an appeal?
By those questions, the national court is essentially asking whether Article 47(1) of the Convention is to be interpreted
as meaning that proof of service of the judgment of which enforcement is sought can be produced after the application has
been lodged, in particular during the course of appeal proceedings subsequently brought by the party against whom that application
is made.
The third paragraph of Article 33 of the Convention reads:
The documents referred to in Articles 46 and 47 shall be attached to the application, whereas Article 47(1) provides:
A party applying for enforcement shall also produce:
(1)
documents which establish that, according to the law of the State of origin, the judgment is enforceable and has been served
...
.
Article 48 of the Convention further provides:
If the documents specified in point 2 of Articles 46 and 47 are not produced, the court may specify a time for their production,
accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production.
Mr Van der Linden and the Austrian Government maintain that those provisions clearly show that proof of service of the judgment
must be produced, at the latest, when the application is lodged.  According to Mr Van der Linden, such an interpretation is
confirmed by Article 48, since that article makes no provision for the setting of a time-limit, the acceptance of equivalent
documents or the exemption of the applicant from his obligation to produce the documents specified in Article 47(1), whereas
it expressly provides for that possibility in the case of the documents referred to in Articles 46(2) and 47(2).
That view cannot be accepted.
Although, according to the third paragraph of Article 33, the documents referred to in Articles 46 and 47 must be attached
to the application, that does not mean that the domestic procedural rules, to which the first paragraph of Article 33 refers
as regards determination of the time when the application is to be made and of the form which it is to take, may not provide
for the procedure to be regularized by production of proof of service after the application has been lodged, provided that
the objective pursued by the Convention in the third paragraph of Article 33 and Article 47(1) is respected.
In that regard, the experts' report on the Convention (OJ 1979 C 59, p. 1, at p. 55) states that the purpose of serving the
judgment on the defendant is to inform him of the judgment given against him and to give him the opportunity to satisfy it
voluntarily before enforcement can be applied for.
Domestic rules of procedure allowing the court to which application is made to take into consideration, in
ex parte
proceedings, proof that the judgment has been served are not incompatible with such an objective, provided that the party
against whom enforcement is sought, who is not represented at this stage of proceedings, is given a reasonable period of time
in which to satisfy the judgment voluntarily and that the party seeking enforcement bears all costs unnecessarily incurred.
Contrary to the arguments advanced by Mr Van der Linden, that interpretation of the Convention is not invalidated by Article
48 of the Convention.  Whilst it is true that that article, which allows the court to specify a time for the production of
certain documents, does not relate to proof of service as provided for in Article 47(1), it also provides that the court may
accept equivalent documents.  However, that last possibility is excluded as regards proof of service of the judgment of which
enforcement is sought.  As the Advocate General observes in point 18 of his Opinion, Article 48 is merely a special provision
whose scope is limited to the sphere which it governs, and which cannot therefore attach any other limitations to the general
principle that domestic procedural rules which respect the essential requirements of the Convention will normally be applicable.
It should be added that this reasoning also applies in relation to the possibility of regularizing the application by producing
proof of service in the course of appeal proceedings subsequently brought by the party against whom execution was sought.
At that stage, the enforcement procedure is
inter partes
, thereby affording an additional safeguard for the party against whom enforcement is sought.
In those circumstances, the reply to the national court must be that Article 47(1) of the Convention is to be interpreted
as meaning that, where the domestic procedural rules so permit, proof of service of the judgment may be produced after the
application has been made, in particular during the course of appeal proceedings subsequently brought by the party against
whom enforcement is sought, provided that that party is given a reasonable period of time in which to satisfy the judgment
voluntarily and that the party seeking enforcement bears all costs unnecessarily incurred.
Costs
The costs incurred by the German and Austrian Governments and the Commission of the European Communities, which have submitted
observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Fifth Chamber)
in answer to the questions referred to it by the Hof van Cassatie van Belgïe by order of 30 September 1994, hereby rules:
Edward
Puissochet
Moitinho de Almeida
Gulmann
Jann
Delivered in open court in Luxembourg on 14 March 1996.
R. Grass
D.A.O. Edward
Registrar
President of the Fifth Chamber
–
Language of the case: Dutch.