Korkein oikeus; 2013-06-25; A, B; KKO:2013:80
Decision by national courts in the field of European Union law — ECLI:FI:KKO:2013:80
Date: 2013-11-08
Subject matter: Lugano Convention
Origin: Finland

82013FI1108(51)_ENG_SUMJURE
JURE summary
JURE summary
“A” (hereinafter „the plaintiff”), requested that the Finnish District Court recognise and enforce two judgments against “B” (hereinafter “the defendant”) issued by a Norwegian court in absence of the defendant at the hearing.
According to Article 27(2) of the Lugano Convention (1) “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”. The District Court found no reason to suspect that these conditions were not met and declared the judgments recognised and enforceable in Finland.
The defendant appealed this decision asking that it be annulled and that a main hearing be ordered. He alleged that the claim of the plaintiff was unfounded and as such the recognition was manifestly contrary to Finish public policy and that he had not been properly informed of the proceedings in Norway and could not therefore have defended himself.
Regarding the claim of the defendant alleging that the claim of the plaintiff was unfounded, the Court of Appeal cited Article 34(3) of the Lugano Convention, according to which “under no circumstances may the foreign judgment be reviewed as to its substance”.
Regarding the breach of Article 27(2), the Court of Appeal ascertained, that the Norwegian court communicated with the defendant to his address registered in Norwegian Business Register. One of the judgments had been sent to the defendant in a sealed envelope stating that the letter had to be returned to the court if the addressee did not reside at that address, which did not happen. The Court of Appeal took the view that the judgment had been legally notified to the defendant according to Norwegian law. Based on documents in the case file, the Court of Appeal confirmed that also the second condition (sufficient time to enable to arrange the defence) was fulfilled. Therefore, the Court of Appeal dismissed the appeal, confirmed the decision of the District Court and refused to proceed with the dispute at a main hearing.
The defendant appealed to the Korkein oikeus (hereinafter “the Supreme Court”) claiming that the decision of the Court of Appeal should be annulled, and that the application for recognition and enforcement of the foreign judgment should be rejected, or that the case should be referred back to the Court of Appeal and a main hearing be granted.
The Supreme Court, based on Article 34(3) of the Lugano Convention, denied the claim of the defendant in which he alleged breach of Finnish public policy caused by the fact that the claim of the plaintiff was unfounded. After that, the Supreme Court assessed the communication between the Norwegian court and the defendant to ascertain whether the preconditions set by Article 27(2) were fulfilled or not. The Norwegian court sent the mail to defendant’s address registered in Business Register. However, the defendant claimed that the information regarding the address was not relevant at that time, as he had moved to Finland, was no longer residing at that Norwegian address and therefore was not able to accept the delivery sent by the court. As he added, the plaintiff was informed of this change. On the contrary, the plaintiff denied that he had been aware of this. This situation may give rise to a different assessment of whether the conditions set by Article 27(2) were met or not.
The Supreme Court cited the provisions of the OK (2), according to which the courts must schedule a main hearing if it is necessary for the hearing of a party, witness or expert or otherwise necessary to clarify a matter or when a party to the dispute has requested it. Since the question of the service of the document during the proceedings in Norway is a substantial matter in this case and the parties has different views on this matter, it is not possible to provide a final decision on the recognition and enforceability until the issue is be reliably ascertained during a main hearing.
Therefore, the Supreme Court annulled the decision of the Court of Appeal and ordered the case to be legally proceed at the Court of Appeal again, taking into account the reason why the case was referred back by the Supreme Court.
(1) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.
(2) Oikeudenkäymiskaari (Code of Judicial Procedure).