Opinion of the Advocate General — ECLI:EU:C:2005:722
Date: 2005-11-24
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 enforcement proceedings, during which the defendant does not, pursuant to Article 34 of the Convention, have an opportunity of making any submissions. 42. Only if he appeals pursuant to Article 36 does the defendant have an opportunity of arguing against recognition and enforcement of the judgment. Article 36 thus represents the procedural complement to the substantive reasons for denying recognition listed in Articles 27 and 28 of the Convention. 43. Although those reasons must also be examined by the court with jurisdiction in the State in which enforcement is sought, of its own motion, before the enforcement order is issued, (16) the Convention does not impose an obligation to determine of its own motion the facts relevant to the decision, and a thorough discussion of the requirements for recognition therefore takes place only during the inter partes proceedings to which an appeal pursuant to Article 36 gives rise. (17) 44. Regulation No 44/2001, (18) which does not apply to the current proceedings, now prohibits even review of the grounds for denying recognition before the enforcement order is issued, and it is therefore only the party against whom enforcement is sought who can cite those grounds when appealing against the enforcement order. (19) 45. Of particular importance is the right to a hearing at the enforcement stage, granted to the defendant by Article 36 of the Convention with respect to Article 27(2) thereof. Thus, where that ground applies, the defendant has for the first time the opportunity of defending himself. The protection afforded by Article 27(2) would be valueless without the opportunity to submit a defence provided by Article 36, so it would be possible in certain cases to enforce a judgment given in proceedings in which the defendant had had no opportunity to participate. 46. Inter partes proceedings pursuant to Article 36 represent not only the first but also the last, or only, opportunity for the party against whom enforcement is sought to rely on the grounds for refusal of recognition laid down in Articles 27 and 28 of the Convention. In order that the period prescribed in Article 36 for appeals remains effective, valid grounds which could have been advanced by the party against whom enforcement is sought during that appeal may not be advanced by him during a later appeal against the specific measure of enforcement. (20) 47. In the overall system established by the Convention, the time-limit defined in Article 36 thus plays a decisive role in determining the opportunities which the defendant has of defending himself. This must be taken into account in the interpretation and application of that provision. B – The questions referred 48. Pursuant to the first paragraph of Article 36 of the Convention, the party against whom enforcement is sought may appeal against the decision authorising enforcement ‘within one month of service thereof.’ 49. Although the Convention thus refers to ‘service’, it does not contain – leaving aside the special case referred to in the second paragraph of Article 36, which is not relevant in this context – any rules on the details of the service procedure and does not, in this respect, seek to harmonise national legislation. (21) The requirements for the effective service of the enforcement order are therefore determined, in principle, by the legislation of the State in which enforcement is sought on internal service, provided that the party against whom enforcement is sought is domiciled there. 50. None the less, certain standards for service can be deduced from Article 36. – Notice no substitute for service 51. According to the unambiguous wording of Article 36, the period within which an appeal may be lodged begins to run with the service of the enforcement order. When the context, spirit, purpose and wording of this provision are taken into account, the service requirement laid down in the first paragraph of Article 36 cannot be understood other than in the technical sense, that is to say, as formal service. 52. The first paragraph of Article 36 thus precludes national legislation which allows the service requirement to be disregarded where the party against whom enforcement is sought has notice of the enforcement order. 53. That ‘service’ in Article 36 of the Convention is to be understood in the formal sense is proved by the fact that – as far as I can see – the various language versions use the appropriate technical term from procedural law. (22) 54. In contrast, Article 35 of the Convention merely requires that the decision given on the application be brought without delay ‘to the notice’ of the applicant seeking enforcement in accordance with the procedure laid down by the law of the State in which enforcement is sought. Similarly different requirements of the communication of that decision to the applicant and the party against whom enforcement is sought are laid down in the French, German, Italian, Dutch and Portuguese language versions. (23) Regulation No 44/2001 also retains this distinction. (24) 55. The distinction between communication to applicants and communication to parties against whom enforcement is sought can be explained by the different consequences associated with that communication. While a binding period for bringing an appeal begins with the service of the enforcement order for the party against whom enforcement is sought, bringing the decision to the notice of the applicant has no such legal effect. Unlike Article 36 in the case of the party against whom enforcement is sought, Article 40 of the Convention does not, in the applicant’s case, specify a time-limit for appealing against the refusal of his application for enforcement. (25) 56. The Convention must therefore ensure only with respect to the party against whom enforcement is sought that communication of the enforcement order is effected by means of formal service. The service requirement performs a dual function in this context as regards causing the period for appealing to begin to run: on the one hand, it serves to protect the rights of the defence of the party against whom enforcement is sought, since formal service as a rule guarantees that he receives notice of the enforcement order and is able to appeal against it. On the other hand, service performs an evidentiary function and enables the period for bringing an appeal to be calculated accurately. 57. An interpretation which held notice to be equivalent to service would also be likely to undermine the service requirement completely, for if no more than notice was needed, the applicant would be tempted to ignore the prescribed forms for due service. (26) As regards the criterion of due service in Article 27(2) of the Convention, the Court has stated as much, holding that ‘recognition of a foreign judgment should be refused if service has not been effected in due form, regardless of whether the defendant was actually aware of the document instituting the proceedings.’ (27) – Consideration of notice for the curing of service defects under national law 58. Like the other provisions of the Convention, Article 36 does not contain any rules for curing service defects, but confines itself to requiring effective formal service of the enforcement order. 59. The legal consequences of the infringement of individual provisions concerning service and the conditions under which an infringement can be cured and effective service still achieved are thus determined by the relevant national legislation on the service of legal documents. (28) For curing service defects, national legislation may refer to actual notice of the document to be served, an approach which the first paragraph of Article 36 of the Convention does not in principle preclude. 60. In qualification, however, it must be pointed out that the national law of the State in which enforcement is sought applies, although it must conform to the aims of the Convention. (29) As the Court stated in Pendy Plastic, the Convention is designed to ensure that the defendant’s rights are effectively protected, without seeking to harmonise the different systems of service in the Member States. (30) The application of the law of the State in which enforcement is sought must not therefore in any way prejudice the rights of the party against whom enforcement is sought, which the Convention is designed to safeguard. (31) 61. It is for the national court to decide whether, under domestic provisions on service, notice of the enforcement order results in an initially defective act of service having to be regarded as effective formal service, thus causing time to begin to run for the purposes of an appeal. 62. In applying its national legislation on the curing of defects, the national court must, however, bear in mind the protective function of the service requirement laid down in Article 36 of the Convention and the decisive effect of the time-limit for appeals, caused by service to begin to run, on the opportunities which the party against whom enforcement is sought has to defend himself within the overall system established by the Convention. The national court must ensure that the rights of the party against whom enforcement is sought are adequately protected in specific cases and that that party is actually put in a position of being able to appeal within the period prescribed, as provided for in Article 36. VI – Conclusion 63. In view of the foregoing, I propose in summary that the Court should answer the questions referred by the Corte d’Appello as follows: Article 36 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, 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, the Convention of 25 October 1982 on the accession of the Hellenic Republic and the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic must be interpreted as meaning that the time-limit for lodging an appeal begins to run only with the formal service of the enforcement order in accordance with national law. In particular, service cannot be replaced by notice of the enforcement order on the part of the party against whom enforcement is sought. National law may, if necessary, have regard to whether the enforcement order has been brought to the notice of the party against whom enforcement is sought in order to cure service defects; in such cases, it must ensure that the rights of defence of the party against whom enforcement is sought are safeguarded and that he is actually put in a position of being able to appeal within the period prescribed, as provided for in Article 36. 1 – Original language: German. 2 – Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters 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 – amended version – p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1). See also the consolidated version of 26 January 1998 (OJ 1998 C 27, p. 1). 3 – Judgment No 3527 of the Corte Suprema di Cassazione of 25 June 1979. 4 – Judgments No 3799 of 2 May 1997 and No 4120 of 14 May 1990. 5 – The payment order is a court measure issued in certain circumstances in ex parte proceedings. Such an order may be appealed within 40 days of its being served, possibly resulting in subsequent inter partes proceedings. 6 – Mr Verdoliva refers for this purpose to Case 305/88 Lancray [1990] ECR I-2725, Case C-123/91 Minalmet [1992] ECR I-5661 and Case C‑432/93 SISRO [1995] ECR I-2269. 7 – The Commission refers in this context to Case 228/81 Pendy Plastic [1982] ECR 2723, paragraph 13. 8 – One possibility, according to the Commission, would be to prescribe personal service, another to shift the beginning of the period from which time begins to run, for example, to the time of notice or to the beginning of enforcement, and a third to provide for possibilities of the limitation period being restored after its expiry. 9 – Case 198/85 Carron [1986] ECR 2437, paragraph 8. See also the Case 258/83 Brennero [1984] ECR 3971, paragraph 10, and Case 148/84 Deutsche Genossenschaftsbank [1985] ECR 1981, paragraph 16. 10 – For this objective of the Convention see Case C-7/98 Krombach [2000] ECR I-1935, paragraph 19, Case C-414/92 Solo Kleinmotoren [1994] ECR I-2237, paragraph 20, and Case C-267/97 Coursier [1999] ECR I-2543, paragraph 25. 11 – Case 49/84 Debaecker [1985] ECR 1779, paragraph 10; confirmed in Lancray (cited in footnote 6), paragraph 21 and Krombach, (cited in footnote 10), paragraph 43, and, most recently, Case C-522/03 Scania Finance France [2005] ECR-I-8639, paragraph 15. 12 – Krombach (cited in footnote 10), paragraph 26, and Case C-185/95 P Baustahlgewebe [1998] ECR I-8417, paragraphs 20 and 21, and Cases C-174/98 P and C-189/98 P Van der Wal [2000] ECR I-1, paragraph 17. 13 – Baustahlgewebe (cited in footnote 12) paragraphs 20 and 21. 14 – OJ 2000 C 364, p. 1. Although the Charter of Fundamental Rights as such still does not does not have any binding legal effects comparable to primary law, it does, as a material legal source, shed light on the fundamental rights which are protected by the Community legal order. See inter alia my Opinion in Case C-540/03 Parliament v Council, [2006] ECR I-5769, paragraph 108, with further references. 15 – Case 166/80 Klomps [1981] ECR 1593, paragraph 7, Minalmet (cited in footnote 6), paragraph 18, Case C-172/91 Sonntag [1993] ECR I-1963, paragraph 38, and Scania Finance France (cited in footnote 11), paragraph 16. 16 – See the second paragraph of Article 34 of the Convention. See also Klomps (cited in footnote 15), paragraph 7. 17 – See Kropholler, Europäisches Zivilprozessrecht, Kommentar zu EuGVÜ und Lugano-Übereinkommen, 6th edition, 1998, Article 34, paragraph 7; Schlosser, EuGVÜ, 1996, Article 34, paragraph 3; Geimer/Schütze, Europäisches Zivilverfahrensrecht, Kommentar zum EuGVÜ und zum Lugano-Übereinkommen, 1997, Article 34, paragraph 27. 18 – Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). 19 – See Article 41 of Regulation No 44/2001. 20 – Case 145/86 Hoffmann [1988] ECR 645, paragraphs 30 to 34, and Case C-183/90 Van Dalfsen and Others [1991] ECR I-4743, paragraph 34. 21 – See Pendy Plastic (cited in footnote 7), paragraph 13, Lancray (cited in footnote 6), paragraph 28, and Scania Finance France (cited in footnote 11), paragraph 18. 22 – See, in this respect, footnote 23. 23 – The French language version uses ‘est portée à la connaissance’ in Article 35 as against ‘signification’ in Article 36; the German version distinguishes between ‘mitteilen’ and ‘zustellen’ the Italian version distinguishes between ‘è comunicata’ and ‘notificazione’, the Dutch version between ‘wordt ter kennis gebracht’ and ‘betekening’ and the Portuguese version between ‘serà levada ao conhecimento’ and ‘notificação’. Moreover, some language versions use in Article 27(2), in addition to the term for service, a further, untechnical term: ‘signifier’ and ‘notifier’ in the French; ‘notificato o comunicato’ in the Italian; ‘comunicado o notificado’ in the Portuguese. 24 – See Article 42 of Regulation No 44/2001 (cited in footnote 18). 25 – This distinction is retained in Regulation No 44/2001, which otherwise covers appeals by applicants and parties against whom enforcement is sought in a single provision; see Article 43 of the Regulation and, in this respect, particularly paragraph 5 thereof (cited in footnote 18). 26 – Lancray (cited in footnote 6), paragraph 20. 27 – Lancray (cited in footnote 6), paragraph 22. See also Minalmet (cited in footnote 6), paragraph 21. The new rules in Regulation No 44/2001 are, however, intended to ensure, not that service is effected in due form, but that service is effected in such a way as to enable the defendant to arrange for his defence; see Article 34(2) of the Regulation (cited in footnote 18). 28 – On the question of curing service defects in the context of Article 27(2) of the Convention see Lancray (cited in footnote 6), paragraphs 25 to 31. In that judgment the Court came to the conclusion that, since the service of the document instituting proceedings forms part of the procedure before the State in which the judgment was given, the question whether service was duly effected and service defects cured can only be answered by reference to the law to be applied by that Court, including any relevant international treaties on service abroad. 29 – Carron (cited in footnote 9), paragraph 14. 30 – Cited in footnote 7, paragraph 13; see also Lancray (cited in footnote 6), paragraph 28). 31 – Carron (cited in footnote 9), paragraph 14. In the specific circumstances concerned, the Court came to this conclusion in relation to Article 33 of the Convention, under which procedure and sanctions are again governed by the law of the State in which enforcement is sought.