3.

The argument of the appellant and the Commission cannot be accepted. It should be pointed out that, in view of the considerable safeguards enjoyed by the defendant in the substantive proceedings, the authors of the Convention thought it equitable to confer on a party wishing to enforce a judgment in his favour the benefit of a speedy procedure in which the debtor would be precluded from raising fresh objections and the court's role would be limited to considering issues of public policy. To that end, no reference was allowed to the procedure of the State in which enforcement was sought (which does not always confer on the creditor the advantages mentioned above), and it was decided to adopt a common system. The system chosen from amongst the various possibilities under consideration was the one based on an application by the successful party, precisely because it enables the court to give a ruling on the basis of the documents supplied by him, without hearing the other party. In short, it may be said that the essential elements of the procedure under the Convention are the following: (a) an application for enforcement made by the person concerned to the court within whose jurisdiction the persons against whom enforcement is sought is domiciled (see Articles 31 and 32); (b) the obligation, on the part of that person, to give an address for service of process within the jurisdiction of the court applied to (second paragraph of Article 33); and (c) the decision on the application, which ‘the appropriate officer of the court shall without delay bring... to the notice of the applicant [alone] ... ’ (Article 35). With regard to the rules on the time-limits and formal requirements governing those steps, on the other hand, the legislature preferred not to lay down an ad hoc set of rules but to leave such matters to the law of the State in which enforcement is sought. That is expressly laid down in respect of the application for enforcement (first paragraph of Article 33) and the notification of the decision authorizing enforcement (Article 35) — that is, the steps which initiate and close the proceedings. It is obvious, however, that the same criterion holds good for the furnishing of an address for service. That is made clear, moreover, by (a) the plain words of the article (rightly relied on by the governments participating in the proceedings before this court), (b) the remarks made in the Jenard Report (Official Journal 1979, C 59 at pp. 49 and 50, second and sixth paragraphs under the heading ‘Article 33’) and (c) a simple argument a contrario: where the legal system of the State in which enforcement is sought makes no provision for an address for service, the act which takes its place, namely the appointment of a representative ad litem, can only be carried out in accordance with the rules governing procedural steps intuitu personae. As regards the question of penalties, it seems advisable to draw a distinction according to whether the applicant fails to comply with the obligations laid down by Articles 32 and 33 or with the rules established by the lex fori to ensure that they are observed in good time. In the first case the court hearing the application for enforcement will dismiss it for breach of those two articles (see Jenard Report, under the heading ‘Article 34’), and in the second it will take the measures required by its own rules of procedure. From the point of view of the Convention, that entails better supervision by the national court, which will be quite familiar with its own procedural rules. At the same time the applicant has every interest in complying with them in order not to jeopardize the result which he hopes to achieve. In those circumstances the reply to the first question cannot be other than affirmative. The second question thereby becomes otiose.