Opinion of the Advocate General — ECLI:EU:C:2012:247
Date: 2012-04-26
Language of the case: Latvian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Latvia

Summary — Judgment of the Court (First Chamber), 6 September 2012 1. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Recognition and enforcement of judgments — Grounds for refusing enforcement — Failure to serve on, or notify, the defendant, in good time, the document instituting proceedings — Review by the court in which enforcement is sought — Scope — Verification of the accuracy of the information contained in the certificate issued pursuant to Article 54 of the regulation — Included (Council Regulation No 44/2001, Recitals 16 and 17, Arts 34(2), 36, 45 and 54) 2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Recognition and enforcement of judgments — Grounds for refusing enforcement — Infringement of the public policy of the Member State in which recognition is sought — Determination by the courts of the Member State in which recognition is sought — Limits — Judicial review by the Court (Council Regulation No 44/2001, Arts 34(1), 36 and 45(2)) 3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Recognition and enforcement of judgments — Grounds for refusing enforcement — Infringement of the public policy of the Member State in which enforcement is sought — Determination by the courts of the Member State in which recognition is sought — Judgment given in default of appearance and without reasoning in the Member State of origin — Examination of the existence of evidence of a manifest and disproportionate breach of the defendant’s right to a fair trial — Elements to be taken into consideration (Council Regulation No 44/2001, Art. 34(1) and 45(1); Charter of Fundamental Rights of the European Union, Art. 47, second para.) 1. Article 34(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to which Article 45(1) thereof refers, read in conjunction with recitals 16 and 17 in the preamble, must be interpreted as meaning that, where the defendant brings an action against the declaration of enforceability of a judgment given in default of appearance in the Member State of origin which is accompanied by the certificate provided for by Article 54 of that regulation, claiming that he has not been served with the document instituting the proceedings, the court of the Member State in which enforcement is sought hearing the action has jurisdiction to verify that the information in that certificate is consistent with the evidence. Regulation No 44/2001 provides for a double review seeking to ensure, in particular, respect for the rights of defence of the defendant in default, not only during the initial proceedings in the Member State of origin, but also during the enforcement proceedings in the requested Member State, at the end of which the court of the Member State in which enforcement is sought must refuse or revoke the enforcement of a foreign judgment given in default of appearance, if the defendant was not served with the document instituting proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange his defence. In that context, whether the defendant was served with the document which instituted the proceedings is a relevant aspect of the overall assessment of a factual nature which must be conducted by the court of the Member State in which enforcement is sought in order to ascertain whether that defendant has the time necessary in order to prepare his defence or to take the steps necessary to prevent a decision delivered in default of appearance. In that regard, the fact that the foreign judgment is accompanied by the certificate, drawn up in accordance with Article 54 of Regulation No 44/2001, cannot limit the scope of the assessment to be made pursuant to the double control, by the court of the Member State in which enforcement is sought. First of all, no provision of Regulation No 44/2001 expressly prohibits the court of the Member State in which the enforcement is sought from verifying the accuracy of the factual information contained in the certificate, since Articles 36 and 45(2) thereof limit the prohibition on review of the substance only to the judgment of the Member State of origin. Next, since the court or authority competent to issue that certificate is not necessarily the same as that which gave the judgment whose enforcement is sought, that information can only have prima facie value. Finally, the information contained in the certificate is limited to the date of service of the document instituting the proceedings where judgment was given in default of appearance, without mentioning any other information which helps to ascertain whether the defendant was in a position to defend himself such as, in particular, the means of service or the address where service was effected. In that context, although the function ascribed to the certificate is to facilitate, in the first stage of the procedure, the adoption of the declaration of enforceability of the judgment given in the Member State of origin, that objective cannot be attained by undermining in any way the right to a fair hearing. (see paras 32-38, 41, 42, 44, 46, operative part 1) 2. See the text of the decision. (see paras 49, 50) 3. Article 34(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to which Article 45(1) thereof refers, must be interpreted as meaning that the courts of the Member State in which enforcement is sought may refuse to enforce a judgment given in default of appearance which disposes of the substance of the dispute but which does not contain an assessment of the subject matter or the basis of the action and which lacks any argument of its merits, only if it appears to the court, after an overall assessment of the proceedings and in the light of all the relevant circumstances, that that judgment is a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, on account of the impossibility of bringing an appropriate and effective appeal against it. The extent of the obligation to give reasons may vary according to the nature of the decision and must be examined, in the light of the proceedings taken as a whole and all the relevant circumstances, taking account of the procedural guarantees surrounding that decision. (see paras 60, 62, operative part 2)