Information;Order — ECLI:EU:C:2022:368
Date: 2022-05-05
Language of the case: Portuguese
Court formation: Sixth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-346/21 – 1 
Case C-346/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
4 June 2021 
Referring court: 
Tribunal da Relação do Porto (Court of Appeal, Oporto, Portugal) 
Date of the decision to refer: 
12 April 2021 
Defendant at first instance and appellant at second instance: 
ING Luxembourg SA 
Applicant at first instance and respondent at second instance: 
VX 
  
Subject matter of the main proceedings 
Application for an order requiring the defendant at first instance and appellant at 
second instance (‘the appellant’) to pay compensation to the applicant at first 
instance and respondent at second instance (‘the respondent’) in the amount of 
EUR 54 000, plus interest, and successively alternative applications for the 
annulment, on the ground of error, of a legal transaction for the subscription of 
bonds that was concluded between the respondent and the appellant, as financial 
intermediary; for the annulment, on the ground of the occurrence of an error in 
relation to the essential elements of the contract, of the financial intermediation 
contract concluded, subject to the declaration that the instrument for the 
subscription of bonds concluded between the respondent and the appellant is 
vitiated by nullity; and for the termination of the legal transaction for the 
subscription of bonds that was concluded between the respondent and the 
appellant, as financial intermediary, on account of a subsequent change of 
circumstances, all of which seek an order requiring the appellant to pay a sum of 
EUR 54 000, plus interest. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-346/21 
 
2  
Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling seeks to determine whether, in the case of a 
defendant with a registered office in a Member State other than the Member State 
in which the proceedings are being conducted, service which is effected on that 
defendant by registered letter, more specifically a letter accompanied by a 
translation, but without the form set out in Annex II to Regulation (EC) 
No 1393/2007 of the European Parliament and of the Council of 13 November 
2007 on the service in the Member States of judicial and extrajudicial documents 
in civil or commercial matters (service of documents), and repealing Council 
Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79), is valid, and, moreover, 
whether that regulation and the principles contained in it preclude a national 
provision which provides for a maximum period for pleading the nullity of 
service.  
Questions referred for a preliminary ruling 
– May Article 8 of Regulation (EC) No 1393/2007 be interpreted as meaning 
that service by registered letter that is effected on a company having its registered 
office in another Member State, without use of the form set out in Annex II to 
Regulation No 1393/2007, may, in the circumstances of the present case, be 
regarded as valid?  
– May Regulation (EC) No 1393/2007 and the principles of EU law therein be 
interpreted as meaning that they preclude the application of Article 191(2) of the 
Portuguese Código de Processo Civil (Code of Civil Procedure) to the present 
case, in so far as that provision states that a pleading of nullity of service must be 
lodged within a certain time limit (namely, the time limit laid down for lodging a 
defence)? 
Provisions of EU law relied on 
Articles 8 and 14 of Regulation No 1393/2007. 
Order of the Court of Justice of 28 April 2016, Alta Realitat (C-384/14, 
EU:C:2016:316). 
Judgment of the Court of Justice of 16 September 2015, Alpha Bank Cyprus 
(C-519/13, EU:C:2015:603). 
Provisions of national law relied on 
Article 567 of the Código de Processo Civil (Code of Civil Procedure; ‘the CPC’): 
‘Effects of failure to lodge a defence 
ING LUXEMBOURG 
 
3 
1 – If a defendant who has been or is to be regarded as having been duly 
summoned does not lodge a defence […], the claims made by the applicant shall 
be deemed to have been admitted. 
[…] 
3 – If settlement of the dispute is manifestly uncomplicated, the judgment may be 
confined to the operative part, preceded by the necessary identification of the 
parties and a summary statement of the legal grounds’. 
Article 568 of the CPC 
‘Exceptions 
The provisions of the foregoing article shall not apply: 
[…] 
d) in the case of claims that must be proved by written documentation’. 
Brief presentation of the facts and the main proceedings 
1 The respondent brought an action seeking an order requiring the appellant to pay 
compensation or, in the alternative, cancelling or terminating the contracts which 
gave rise to the dispute. 
2 The appellant is a company with its registered office in the Grand Duchy of 
Luxembourg.  
3 Service of the summons was effected on the applicant by registered letter with 
acknowledgement of receipt, accompanied by a French translation of the letter of 
service itself, the application and the documents annexed thereto, numbered 1 to 
16; that documentation was also accompanied by Portuguese copies of the 
application and of the documents annexed thereto. 
4 What was not annexed to the letter of service was the form set out in Annex II to 
Regulation (EC) No 1393/2007. 
5 The applicant did not lodge a defence. 
6 By order of 24 June 2019, the claims made in the application were deemed to have 
been admitted. 
7 By judgment of 9 September 2019, the application was granted and the appellant 
was ordered to play the respondent the sum of EUR 54 000, plus accrued interest 
calculated at the prevailing rate from the date of service and interest due to accrue 
until full payment of the sums claimed. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-346/21 
 
4  
8 Service of the judgment was initially effected by registered letter of 10 September 
2019, accompanied by a Portuguese-language version of that judgment, and, at the 
appellant’s request, service was re-effected, this time with the judgment duly 
translated by the respondent.  
9 By letter of 25 October 2019, the appellant claimed that service of the judgment 
was non-existent or, at the very least, void. 
10 On 13 November 2019, the appellant lodged an appeal against that judgment, on 
the same grounds, in essence, as those set out in the letter of 25 October 2019. 
11 The respondent lodged a statement of opposition to the appeal. 
12 On 2 July 2020, the court of first instance dismissed the grounds of nullity relied 
on in the statement of 25 October 2019. 
13 According to that court, the summons was served on the appellant in accordance 
with the Regulation, in so far as the summons was drafted in French, a language 
which the appellant understands, either because it used that language in order to 
apply to the court or because it is one of the official languages of the Grand Duchy 
of Luxembourg. It was therefore unnecessary to send the form set out in Annex II 
to that regulation, given that there is an obligation to send that form only if the 
judicial act (summons) or the notice of service of the judgment was not drafted in 
an official language of the Member State or if it was not accompanied by a 
translation. 
14 The appellant lodged against that judgment an appeal in which it essentially 
advanced the same arguments and claims as were set out in the previous appeal 
and in the letter of 25 October 2019. 
Essential arguments of the parties in the main proceedings 
15 The appellant states that, in breach of Article 8 of Regulation No 1393/2007, the 
summons served upon it and the notice of service of the judgment were not 
accompanied by the form set out in Annex II to that regulation, meaning that the 
judicial act was non-existent or, at the very least, void, and that this claim is not 
subject to any time limit. 
16 It states that the Court of Justice held that Regulation (EC) No 1393/2007 does not 
contain any exception to use of the form set out in Annex II to that regulation, the 
sending of which is mandatory in any circumstances, national courts enjoying no 
discretion in this regard (order of the Court of Justice of 28 April 2016, Alta 
Realitat, C-384/14, EU:C:2016:316, and judgment of the Court of Justice of 
16 September 2015, Alpha Bank Cyprus, C-519/13, EU:C:2015:603). 
17 It argues that failure to send the form infringes the right to adversarial proceedings 
and a fair trial [Article 20 of the Constituição da República Portuguesa 
ING LUXEMBOURG 
 
5 
(Constitution of the Portuguese Republic)] and the right to a fair trial provided for 
in Article 6 of the European Convention on Human Rights. 
18 It goes on to say that it did not receive service of the order of 6 May 2019 
requiring the respondent to enter in the case file the documents which the latter 
had undertaken to produce in the application. 
19 In its view, the judgment is vitiated by a lack of reasoning, since it confines itself 
to deeming the claims made to have been proved, without explaining to what 
extent the attached documents operate to support the decision. 
20 It submits that, in accordance with Article 568(d) of the CPC, the judgment cannot 
deem to be proved claims which must be proved by written documentation, and 
that Article 567 of the CPC is therefore inapplicable. 
Brief presentation of the grounds for the request for a preliminary ruling 
21 In order to dispose of the dispute in the main proceedings, it is necessary to 
ascertain whether, in the light of the [effects of the] failure to lodge a defence 
referred to in Article 567(1) of the CPC, the court of first instance was entitled to 
deem the claims set out in the application to have been admitted, in so far as the 
appellant did not lodge a defence, the answer to which question in turn hangs on 
whether the appellant had been duly summoned. To that end, it falls to be 
determined whether service effected without the accompaniment of the form set 
out in Annex II to Regulation No 1393/2007, but with the accompaniment of a 
translation as described above, is valid. It is also important to establish whether, in 
the event that such service is regarded as being invalid, EU law precludes a 
provision of national law which lays down a time limit for pleading invalidity of 
service.