Korkein oikeus; 1998-06-17; Amstelstraat Management Co, Oy Valkom Stevedoring Co Ab; KKO:1998:72
Decision by national courts in the field of European Union law — ECLI:FI:KKO:1998:72
Date: 1998-06-17
Subject matter: Lugano Convention
Origin: Finland

81998FI0617(51)_ENG_SUMJURE
JURE summary
JURE summary
A Dutch company, Amstelstraat (hereinafter “the plaintiff”), applied in Finland for the recognition and enforcement of a judgment issued by a French court against a company Valkom (hereinafter the “defendant”).
The Court of First Instance, invoking Articles 25, 31, 32 and 54 of the Lugano Convention (1), immediately ordered the bailiff to execute the judgment.
The defendant appealed this decision, seeking that it be annulled, alleging that it had not being legally notified of the legal proceedings held in France, as it was served only documents in French language. Therefore, the defendant alleged that the judgment is not lawfully recognisable and enforceable in Finland. The Court of Appeal admitted that according to Article 27(2) of the Lugano Convention “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”. However, after examining several documents in the case file, the Court of Appeal decided that the defendant had been properly informed of the proceedings in the France. Moreover, the final decision of the French court was communicated to the defendant with its translation into English and the defendant had not taken any action when it received it, even though it had been able to appeal against that decision. The Court of Appeal upheld the decision of the Court of First Instance.
The defendant filed an appeal to the Korkein oikeus (hereinafter “the Supreme Court”) requesting the annulment of the decision of the Court of Appeal and the rejection of the application for recognition and enforcement of the French judgment.
The Supreme Court cited the Article 27(2) of the Lugano Convention and added, that by virtue of Article 34(2), the application may be refused only for one of the reasons specified in Articles 27 and 28, but it is on the court to ascertain, first, whether the documents mentioned in Article 27(2) were served properly to the defendant and, secondly, whether the time to enable to arrange the defence was sufficient enough. The Supreme Court affirmed, that the defendant was correctly notified of the action under the provisions of French NCPC (2). As regards the second precondition, it is evident that the defendant was aware of the fact that there was a lawsuit against him in France for more than four months, so the time to appeal against the decision was held sufficient.
The Supreme Court added that the Court of First Instance erroneously ordered the bailiff to enforce the judgment immediately after receiving the application. Based on Article 39 of the Lugano Convention, “during the time specified for an appeal pursuant to Article 36 and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures taken against the property of the party against whom enforcement is sought.”.
Therefore, the Supreme Court ruled that the decision of the Court of First Instance should be amended in such a way that the judgment of the French court must be first legally declared enforceable in Finland and only after that submitted to the bailiff.
(1) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.
(2) Nouveau Code de procédure civile.