Opinion of Mr Advocate General Jacobs delivered on 3 May 1990. - Isabelle Lancray SA v Peters und Sickert KG. - Reference for a preliminary ruling: Bundesgerichtshof - Germany. - Brussels Convention of 27 September 1968 - Recognition of default judgment - Article 27 (2). - Case C-305/88.



European Court reports 1990 Page I-02725



Opinion of the Advocate-General

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My Lords,

1 . This case arises by way of a reference for a preliminary ruling from the Bundesgerichtshof ( Federal Court of Justice ) under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (" the Brussels Convention "). The two questions referred ask for guidance on the meaning of Article 27 of the Brussels Convention in the version in force prior to the accession thereto of Denmark, Ireland and the United Kingdom . Article 27 is concerned with the circumstances in which the courts of one Contracting State are precluded from recognizing judgments given by the courts of another Contracting State . The first question referred to the Court corresponds to that posed by the Bundesgerichtshof in Case 36/88, which was removed from the register after the main action was discontinued .

The facts

2 . The facts of the case are as follows . On 2 November 1983, Isabelle Lancray SA (" Lancray "), a French company having its registered office at Neuilly-sur-Seine, entered into an agreement for the exclusive distribution of its products with Peters und Sickert KG (" Peters "), a limited partnership governed by German law and established at Essen . The contract was expressed to be subject to French law and conferred jurisdiction on the Tribunal de commerce ( Commercial Court ), Nanterre . Lancray subsequently terminated the contract, taking the view that Peters was no longer complying with it . In accordance with Article 24 of the Brussels Convention ( which is the same in both the pre-accession and post-accession versions ), Lancray then applied to the Amtsgericht ( Local Court ), Essen, for an interim injunction restraining Peters from disposing of any Lancray products in its possession . The injunction was granted on 18 July 1986 . On 30 July 1986, Lancray commenced proceedings before the Tribunal de commerce, Nanterre, seeking confirmation of the injunction granted by the Amtsgericht and certain additional relief . On the same day, the competent French authorities sent to the President of the Landgericht ( Regional Court ), Essen, Lancray' s application and a summons, drawn up in French, requiring Peters to appear before the French court on 18 November 1986 . Those documents were accompanied by a form drawn up in French and English and partly completed in French together with a request that they be served on Peters and that a record of service be returned to the French authorities .

3 . On 19 August 1986, the application and the form drawn up in English and French were handed to a secretary at Peters' offices . Those documents were not accompanied by translations into German . Peters was subsequently sent by registered letter a further application drawn up in French and a summons dated 19 September 1986 to appear before the Tribunal de commerce in Nanterre on 16 December 1986 .

4 . On 16 October 1986, the Landgericht, Essen, lifted the injunction granted to Lancray by the Amtsgericht on 18 July . Peters informed the Tribunal de commerce of this development by letter dated 11 November 1986, in which it also pointed out that the previous documents had not been correctly served as they were not accompanied by translations into German . By a stroke of irony, the Tribunal de commerce returned this letter with a recommendation that a document drawn up in French be submitted .

5 . Peters failed to appear before the Tribunal de commerce which, on 15 January 1987, delivered a decision upholding Lancray' s application . The judgment of the Tribunal de commerce was served on Peters' managing partner on 9 March 1987 .

6 . On 6 July 1987, the Landgericht, Essen, ordered that the judgment of the Tribunal de commerce dated 15 January 1987 be recognized in the Federal Republic of Germany and authorized its enforcement in certain respects . An appeal against that ruling brought by Peters before the Oberlandesgericht ( Higher Regional Court ) was successful . Lancray brought a further appeal against the decision of the Oberlandesgericht before the Bundesgerichtshof, which has referred two questions to this Court for a preliminary ruling .

7 . In the main action, Peters claims that the judgment of the Tribunal de commerce should not be recognized in the Federal Republic by virtue of Article 27(2 ) of the Brussels Convention . This provides that a judgment given in default of appearance by the defendant by a court in one Contracting State shall not be recognized in other Contracting States "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 words in parentheses were added on the accession to the Convention of Denmark, Ireland and the United Kingdom to take account of peculiarities in the procedural law of the last two States and to indicate which documents must be served for the right to a hearing to be respected : see the Schlosser Report ( Official Journal 1979 C 59, p . 71, at pp . 125, 126 and 128 ).

8 . The Oberlandesgericht took the view that, although the application and summons to appear before the Tribunal de commerce on 18 November 1986 were delivered to Peters sufficiently early for it to prepare its defence, they had not been served in accordance with the relevant international conventions on the service abroad of legal documents as they were not accompanied by translations into German . Moreover, the Oberlandesgericht did not consider that it was at liberty to apply its national rules on curing defective service since Peters did not have a command of the language in which the documents in question had been drawn up .

The questions referred

9 . On appeal, the Bundesgerichtshof referred the following questions to this Court for a preliminary ruling :

"( 1 ) Is recognition of a judgment to be refused in accordance with Article 27(2 ) of the pre-accession version of the Brussels Convention where the defendant did not enter an appearance and, although he was served with the document which instituted the proceedings in sufficient time to enable him to conduct his defence, the service was not duly effected?

( 2 ) In the event that a judgment where the defendant did not enter an appearance is not recognized because, although the defendant was served with the document which instituted the proceedings in sufficient time to enable him to conduct his defence, the service was not duly effected, does Article 27(2 ) of the pre-accession version of the Brussels Convention preclude recognition of the judgment even where the laws of the State in which recognition is sought permit the defect of service to be cured?"

10 . Before examining the substance of the questions referred, it is necessary to consider which version of the Brussels Convention is applicable in the main action . The original version of that Convention was amended by the Convention of 9 October 1978 (" the Accession Convention "), by which Denmark, Ireland and the United Kingdom acceded to it . Articles 34 to 36 of the Accession Convention lay down a number of transitional provisions . The second paragraph of Article 34 provides :

" as between the six Contracting States to the 1968 Convention, judgments given after the entry into force of this Convention in proceedings instituted before that date shall be recognized and enforced in accordance with the provisions of Title III of the 1968 Convention as amended ."

11 . The six original Contracting States to the Brussels Convention included France and the Federal Republic of Germany . As far as those States are concerned, the Accession Convention entered into force on 1 November 1986 . Lancray instituted proceedings before the Tribunal de commerce in Nanterre on 30 July 1986 and judgment was given by that court on 15 January 1987 . It would therefore appear, as the Commission points out, that it is the amended rules on recognition and enforcement rather than the pre-accession rules which apply in the present case .

12 . The referring court has not asked for guidance on which version of the Brussels Convention is applicable . However, the substance of Article 27(2 ) was not changed in any relevant respect by the Accession Convention . I do not therefore consider it necessary for this Court to specify to which version of the Brussels Convention its ruling relates . In my view the questions referred fall to be answered in the same terms regardless of which version is applicable . In the remainder of this Opinion, I will indicate the changes made by the Accession Convention where necessary .

13 . Article 27 of the Brussels Convention is contained in Title III, which is headed "Recognition and Enforcement ". The general rule with regard to recognition is laid down in the first paragraph of Article 26 . This provides that "a judgment given in a Contracting State shall be recognized in the other Contracting States without any special procedure being required ". Article 27 constitutes an exception to that general rule . It sets out a number of situations in which a court in one Contracting State must ( not merely may ) refuse to recognize a judgment given by a court in another Contracting State . By virtue of Article 34 of the Brussels Convention, Article 27 also applies to applications before the courts of one Contracting State for the enforcement of a judgment given by a court in another Contracting State . Under Article 46(2 ) of the Brussels Convention, a party seeking recognition or applying for enforcement of a judgment given in default must produce "the original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings [or with an equivalent document]" ( the words in parentheses were added by the Accession Convention ).

14 . The purpose of the second paragraph of Article 27 of the Brussels Convention is to safeguard the rights of the defendant, as the Jenard Report ( Official Journal 1979 C 59, p . 1, at p . 44 ) makes clear . The Court pointed out in Case 166/80 Klomps v Michel [1981] ECR 1593, paragraph 9, that it is "intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised ". Although, as an exception to the general rule laid down in Article 26 of the Brussels Convention, Article 27 is not to be interpreted extensively, too restrictive an interpretation might undermine the defendant' s right to a fair hearing . The Court emphasized in Case 49/84 Debaecker v Bouwman [1985] ECR 1779, paragraph 10, that this was not an acceptable way of achieving the objectives of the Brussels Convention .

15 . The first question referred by the Bundesgerichtshof asks essentially whether the requirements laid down in Article 27(2 ) that service must have been effected properly and in good time are cumulative or whether the first requirement no longer applies where the second has been satisfied . On a literal interpretation, it is clear, at least from the English and French texts, that both requirements must be satisfied : the document which instituted the proceedings must have been served both properly and in good time if a judgment given in default of appearance is to be recognized in another Contracting State . That this was the interpretation intended by the authors of the Brussels Convention is apparent from the Jenard Report, which states ( at p . 44 ) that :

" Where judgment is given abroad in default of appearance, the Convention affords the defendant double protection . First, the document must have been duly served ... Secondly, even where service has been duly effected, recognition can be refused if the court in which recognition is sought considers that the document was not served in sufficient time to enable the defendant to arrange for his defence ."

The Court itself recognized in Klomps v Michel, paragraph 15, that Article 27(2 ) laid down two conditions, both of which had to be satisfied before a judgment given in default could be recognized .

16 . Thus, in a case such as that pending before the referring court, recognition must in my view be refused where the document instituting the proceedings was not duly served, even though the defendant may in fact have received that document in sufficient time to enable it to arrange its defence . Lancray urges a contrary interpretation on the basis that there is no need to insist on proper service where the defendant has in any event had sufficient time to prepare its defence . This view is difficult to reconcile with the wording of the French and English versions of Article 27(2 ) and is inconsistent with both the intentions of the authors of the Brussels Convention and the Court' s case-law . It would also empty the requirement of due service of any substance . The German Government rightly observes that, if that view were adopted, plaintiffs would be tempted to depart from the usual channels for serving documents and assume responsibility for the service of documents themselves . This would create considerable uncertainty as to whether documents had in fact been served at all, thereby undermining the uniform application of the Convention' s provisions . Moreover, as the Commission points out, defendants would be left in doubt as to whether proceedings which might result in a binding judgment had been commenced and whether it was therefore necessary to prepare a defence .

17 . How, then, is a court before which recognition of a judgment given in another Contracting State is sought to determine whether the document instituting the proceedings was duly served? The first paragraph of Article IV of the Protocol annexed to the Brussels Convention provides that "judicial and extra-judicial documents drawn up in one Contracting State which have to be served in another Contracting State shall be transmitted in accordance with the procedures laid down in the conventions and agreements concluded between the Contracting States ". The Jenard Report is more specific, stating in relation to Article 27(2 ) that "reference must be made to the internal law of the State in which the judgment was given, and to the international conventions on the service abroad of judicial instruments" ( p . 44 ). A similar statement is to be found in Klomps v Michel, paragraph 15, where the Court said that this question was to be determined on the basis of the legislation of the State in which judgment was given and the international conventions binding on that State with regard to the service of judicial instruments abroad .

18 . In cases where a defendant domiciled in one Contracting State is sued before a court of another Contracting State and does not enter an appearance, similar issues will have been considered by the court in which judgment was given under the second and third paragraphs of Article 20 of the Brussels Convention . In the present case, it appears to be the third paragraph of Article 20 which is relevant . That provision lays down that, where the document instituting proceedings or notice thereof had to be transmitted abroad in accordance with the Hague Convention of 15 November 1965 on the service abroad of judicial and extra-judicial documents in civil and commercial matters, Article 15 thereof is applicable . According to the referring court, this case is governed by the latter convention . Article 15 provides that where a writ of summons or an equivalent document had to be served abroad and the defendant has not entered an appearance, judgment shall not be given until it is established that the document was served on or delivered to the defendant in accordance with certain specified methods and that service or delivery was effected in sufficient time to enable the defendant to arrange for his defence . Contracting States have the right to declare that judgment may be given, even if no certificate of service or delivery has been received, provided certain conditions are satisfied . The conditions relate to the manner in which the document was transmitted, the time which has elapsed since the date of transmission, and the efforts that have been made to obtain a certificate of service or delivery through the competent authorities of the State addressed .

19 . The fact that, in circumstances such as those of the present case, the court which gave judgment will have considered the manner in which the document instituting proceedings was served on the defendant does not relieve the court in which recognition of that judgment is sought of its duty under Article 27(2 ) to examine this question itself . The Court made this clear in Case 228/81 Pendy Plastic v Pluspunkt [1982] ECR 2723, a case concerned with both recognition and enforcement . As the Court pointed out in its judgment ( see paragraph 8 ) and as I indicated above, Article 27 applies to both . In the Pendy Plastic case, the Court stated :

" Although they do not seek to harmonize the different systems of service abroad of legal documents which are in force in the Member States, the provisions of the Brussels Convention are designed to ensure that the defendant' s rights are effectively protected . For that reason, jurisdiction to determine whether the document introducing the proceedings was properly served was conferred both on the court of the original State and on the court of the State in which enforcement is sought . Thus, in accordance with the objective of Article 27 of the Convention, the court of the State in which enforcement is sought must examine the question posed by paragraph 2 of that article, notwithstanding the decision given by the court of the original State on the basis of the second and third paragraphs of Article 20" ( paragraph 13 ).

20 . In my view, the principles applied in those cases offer sufficient guidance to enable the second question posed by the referring court to be answered . That question asks essentially whether a court is required to refuse to recognize a judgment given in another Contracting State where the document instituting proceedings, although received by the defendant in good time, was not correctly served, notwithstanding the fact that the laws of the State in which recognition is sought permit the defect of service to be cured .

21 . I consider that the answer to this question is a qualified "yes ". The rules to be applied in determining whether the document instituting the proceedings was correctly served are, as already stated, those of the State in which judgment was given and the provisions of any international conventions on service applicable in that State . As the Commission suggests, it is only if those rules ( which may incorporate by reference the rules applicable in the State in which recognition is sought ) permit a defect of service to be cured that the document instituting the proceedings can be regarded as having been duly served for the purposes of Article 27(2 ). Otherwise, where recognition or enforcement is sought in several Contracting States, the outcome might depend on the domestic laws of each of the States concerned and the uniform application of Article 27(2 ) would be jeopardized .

22 . The French Government has invited the Court to examine whether the document which instituted the proceedings at issue here was in fact served improperly . In my view, however, the questions referred fall to be answered on the hypothesis that the document instituting proceedings was not duly served . It is not for this Court, in the context of a reference for a preliminary ruling, to examine whether this was so in the particular circumstances of the case pending before the Bundesgerichtshof . Whether that document was in fact properly served or not is a matter for the national courts .

23 . The result is unfortunate for Lancray, who, apparently through no fault of its own, may find itself unable to secure the recognition of a judgment awarded against a defendant whose case, from the procedural point of view, seems somewhat lacking in merit . None the less, I believe the Court' s case-law and the intentions of the authors of the Brussels Convention to be clear . The case emphasizes the need for those responsible for the service of judicial documents abroad to ensure strict compliance with the applicable rules .

Conclusion

24 . I therefore consider that the questions referred by the Bundesgerichtshof should be answered as follows :

"( 1 ) Article 27(2 ) of the Brussels Convention precludes a court in one Contracting State from recognizing a judgment given by a court in another Contracting State in default of appearance by the defendant where the document instituting the proceedings or an equivalent document was not duly served on the defendant, even where that document was received by the defendant in good time for it to arrange its defence .

( 2 ) In deciding whether the document instituting the proceedings or an equivalent document was duly served on the defendant for the purposes of Article 27(2 ) of the Brussels Convention, a court of a Contracting State which is asked to recognize a judgment given by a court in another Contracting State must apply the provisions of the internal law of the second State and those of any international conventions on the service of documents abroad which are applicable in that State . A court in the first State may cure defects of service only if permitted by those provisions to do so ."

(*) Original language : English .