Judecatoria Sector 2 Bucuresti; 2018-12-14; 15913/300/2018
Decision by national courts in the field of European Union law — ECLI:RO:JDS2B:2018:002.012630
Date: 2018-12-14
Subject matter: Judicial cooperation in civil matters
Origin: Romania

82018RO1214(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards the recognition and enforcement of foreign judgment heard by the Judecatoria Sector 2, Bucureşti (hereinafter ‘the Court of Appeal’).
A plaintiff company and the company domiciled in Luxembourg (hereinafter ‘the defendant’) entered a contract to construct a solar power plant. The plaintiff successfully challenged the contract before the court in Genoa, Italy and the defendant was obliged to pay the plaintiff the sum amounting to more the EUR 30 million. The plaintiff subsequently applied before the Tribunalul București (hereinafter ‘Court of First Instance’) to recognise and enforce the Italian judgment in Romania. The application was successful.
The defendant appealed to the Court of Appeal, invoking Article 45(1)(b) of the Brussels I Regulation (recast) (1). The defendant alleged that the Italian judgment was given in default of its appearance and that it was not even served with the documents instituting the Italian proceedings. The defendant alleged the breach of principle for serving the document as stipulated by Article 7 of  Regulation (EC) No 1393/2007 (2).
Alternatively, the defendant requested the Court of Appeal to make the enforcement conditional in compliance with Article 44(1)(b) of the Brussels I Regulation (recast). The defendant also alleged that the Court of First Instance approved the enforcement despite other related proceedings commenced in Italy (e.g., a criminal complaint in which the defendant challenged the excessive amount of debt requested by the plaintiff) and that the Italian judgment was not yet final.
The Court of Appeal confirmed that the appeal was lodged within 15 days as required by Article 715(1)(3) of the CPC (3) and rejected the plaintiff’s objection to the lateness of the appeal.
The Court of Appeal recalled that the application of Article 45(1)(b) of the Brussels I Regulation (recast) requires the cumulative fulfilment of all the conditions set out therein. The first condition (‘the judgment was given in default of appearance’) must be considered fulfilled since the Italian judgment provides that the other party was not present in the proceedings. However, the second condition (‘the defendant was not served with the document’) cannot be deemed to be satisfied since the documents related to the Italian proceedings confirm the service of documents in compliance with Article 14 of Regulation (EC) No 1393/2007. There are several methods of serving the documents provided by Regulation (EC) No 1393/2007, and there is no hierarchy between them. If one of the methods provided by that Regulation is fulfilled (although another one is not), then the documents’ service cannot be considered erroneous. The third condition stipulates that the refusal on the ground of Article 45(1)(b) is applicable ‘… unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so’. In the present case, the defendant lodged an appeal before the Court of Appeal in Genoa. Therefore, the third condition was not met either. Therefore, the appeal requesting the refusal of recognition and enforcement filed by the defendant must be rejected as unfounded.
Regarding the alternative request for suspending the enforcement pursuant to Article 44 of the Brussels I Regulation (recast), the Court of Appeal held that the satisfaction of this request is not mandatory but optional. The party seeking suspension is required to show good cause for suspending enforcement in whole or part. The Court of Appeal found no reason to grant such a request in the present case. The criminal complaints which are alleged but not proven are not sufficient to stay the enforcement. The Court of Appeal rejected the alternative request as unfounded too.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) 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.
(3) Codul de procedură civilă (Code of Civil Procedure).