Cour de cassation 1ère Chambre civile; 2023-07-12; 1re Civ., 12 juillet 2023, pourvoi n° 21-19.265
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2023:C100496
Date: 2023-07-12
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: France

82023FR0712(52)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Cour de Cassation (hereinafter ‘the Supreme Court’) concerned an application for the enforcement of a foreign judgment.
Relying on the new Lugano Convention (1), the defendants applied for the enforcement of a Swiss judgment given in 2010 between them and the plaintiff.
The case was brought before the cour d’appel d’Aix-en-Provence (hereinafter ‘the Court of Appeal’) which observed that, in their application for enforcement, the defendants mentioned the new Lugano Convention, whereas the applicable text was the Lugano Convention (2). However, the Court of Appeal noted that the two conventions were mostly identical, and examined the validity of the application in light of the Lugano Convention.
The plaintiff appealed to the Supreme Court. He claimed that the Court of Appeal should not have ruled that the two conventions were mostly identical because applications for enforcement must be submitted to the president of the tribunal judiciaire (hereinafter ‘the Court of First Instance’) under the Lugano Convention, whereas they must be submitted to the directeur de greffe (3) of that court under the new Lugano Convention. The plaintiff also claimed that the Court of Appeal could not substitute the Lugano Convention for the new Lugano Convention.
The Supreme Court answered that the grounds of judgment relating to the similarity of the conventions was superfluous, but that 'it fell [to the Court of Appeal] to examine the dispute in light of the applicable rules of law'.
The plaintiff also claimed that he was not served with the document which instituted the proceedings in accordance with the law of the State where he was domiciled. He cited Article 27(2) of the Lugano Convention, which provides that ‘[a] judgment 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 or with an equivalent document in sufficient time to enable him to arrange for his defence’; he also relied on Article 5 of the Hague Service Convention (4), which provides as follows: ‘The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either – a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed’.
The Supreme Court acknowledged that those texts were applicable, but noted that, according to the findings of the Court of Appeal, the plaintiff was aware of the document which instituted the proceedings, and it could not be considered that the Swiss judgment was given in default of appearance for the purposes of Article 27(2) of the Lugano Convention. As a result, it was superfluous to examine if the service was made in accordance with English law.
For those reasons, the appeal was dismissed.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.
(3) Director of the Registry.
(4) Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded 15 November 1965.