Opinion of the Advocate General — ECLI:EU:C:2008:748
Date: 2008-12-18
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Enforcement
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Convention on jurisdiction and the enforcement of judgments – Recognition and enforcement – Definition of ‘judgment’ – Judgments by default – Included – Conditions (Convention of 27 September 1968, Art. 25) 2. Convention on jurisdiction and the enforcement of judgments – Recognition and enforcement of judgments – Grounds for refusal – Infringement of public policy in the State in which enforcement is sought – Assessment by the court of the State in which enforcement is sought (Convention of 27 September 1968, Art. 27(1)) 1. Article 25 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Conventions on Accession of 1978, 1982, 1989 and 1996, refers, without distinction, to all judgments given by a court or tribunal of a Contracting State. For such decisions to fall within the scope of the Convention, it is sufficient if, before their recognition and enforcement are sought in a State other than the State of origin, they have been, or have been capable of being, the subject in that State of origin and under various procedures, of an inquiry in adversarial proceedings. Where the decisions of the national court took the form of a judgment and an order given in default of appearance in civil proceedings which, as a rule, adhere to the adversarial principle, the fact that the court entered judgment as if the defendant, who had entered appearance, was in default, cannot suffice to call into question the categorisation of those decisions as judgments. (see paras 22-23, 25) 2. Article 27(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Conventions on Accession of 1978, 1982, 1989 and 1996, must be interpreted as meaning that the court of the State in which enforcement is sought may take into account, with regard to the public policy clause referred to in that article, the fact that the court of the State of origin ruled on the applicant’s claims without hearing the defendant, who entered appearance before it but who was excluded from the proceedings by order on the ground that he had not complied with the obligations imposed by an order made earlier in the same proceedings, if, following a comprehensive assessment of the proceedings and in the light of all the circumstances, it appears to it that that exclusion measure constituted a manifest and disproportionate infringement of the defendant’s right to be heard. Review by the national court must relate not only to the circumstances in which the decisions – the enforcement of which is sought – were taken, but also to the circumstances in which, at an earlier stage, the injunctive orders were adopted, and in particular to verifying, first, the legal remedies made available to the defendant and, second, that the abovementioned decisions offered the defendant the possibility of being heard, in compliance with the adversarial principle and the full exercise of the rights of defence. (see paras 41, 46, 48, operative part)