Article 34(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to which Article 45(1) thereof refers, read in conjunction with recitals 16 and 17 in the preamble, must be interpreted as meaning that, where the defendant brings an action against the declaration of enforceability of a judgment given in default of appearance in the Member State of origin which is accompanied by the certificate provided for by Article 54 of that regulation, claiming that he has not been served with the document instituting the proceedings, the court of the Member State in which enforcement is sought hearing the action has jurisdiction to verify that the information in that certificate is consistent with the evidence.

Regulation No 44/2001 provides for a double review seeking to ensure, in particular, respect for the rights of defence of the defendant in default, not only during the initial proceedings in the Member State of origin, but also during the enforcement proceedings in the requested Member State, at the end of which the court of the Member State in which enforcement is sought must refuse or revoke the enforcement of a foreign judgment given in default of appearance, if the defendant was not served with the document instituting proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange his defence. In that context, whether the defendant was served with the document which instituted the proceedings is a relevant aspect of the overall assessment of a factual nature which must be conducted by the court of the Member State in which enforcement is sought in order to ascertain whether that defendant has the time necessary in order to prepare his defence or to take the steps necessary to prevent a decision delivered in default of appearance.

In that regard, the fact that the foreign judgment is accompanied by the certificate, drawn up in accordance with Article 54 of Regulation No 44/2001, cannot limit the scope of the assessment to be made pursuant to the double control, by the court of the Member State in which enforcement is sought. First of all, no provision of Regulation No 44/2001 expressly prohibits the court of the Member State in which the enforcement is sought from verifying the accuracy of the factual information contained in the certificate, since Articles 36 and 45(2) thereof limit the prohibition on review of the substance only to the judgment of the Member State of origin. Next, since the court or authority competent to issue that certificate is not necessarily the same as that which gave the judgment whose enforcement is sought, that information can only have prima facie value. Finally, the information contained in the certificate is limited to the date of service of the document instituting the proceedings where judgment was given in default of appearance, without mentioning any other information which helps to ascertain whether the defendant was in a position to defend himself such as, in particular, the means of service or the address where service was effected.

In that context, although the function ascribed to the certificate is to facilitate, in the first stage of the procedure, the adoption of the declaration of enforceability of the judgment given in the Member State of origin, that objective cannot be attained by undermining in any way the right to a fair hearing.

(see paras 32-38, 41, 42, 44, 46, operative part 1)