OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

delivered on 12 February 1985 ( *1 )

Mr President,

Members of the Court,

1. Introduction

The Hoge Raad der Nederlanden [Supreme Court of the Netherlands] has referred to the Court a number of questions concerning Article 27 (2) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [hereinafter referred to as ‘the Convention’].

Article 27 provides as follows :

‘A judgment shall not be recognized:

(1) if such recognition is contrary to public policy in the State in which recognition is sought;

(2) where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence;

...’

This case concerns in particular the rule laid down in that article that the defendant should receive service in sufficient time to ensure, as the Court stated in its judgment of 15 July 1982 in Case 228/81 Pendy Plastic v Pluspunkt [1982] ECR 2723, at p. 2736), ‘that the defendant's rights are effectively protected’ where recognition is sought in a State other than the State in which it was given. The Hoge Raad summarized the various questions in the following terms :

‘May facts which occurred later — that is to say, after the service of the document which instituted the proceedings — compel the plaintiff to take further steps to inform the defendant of the impending action, so that if such steps are not taken the time required by Article 27 (2) does not begin to run?’

The facts of the case

In setting out the facts of the case, I shall be guided largely by the lengthy remarks made by the Commission in its observations. I consider, that a detailed description of the facts is warranted since it is necessary to appraise the facts in order to determine whether service was effected in sufficient time. Therefore even a general answer to the questions submitted to the Court must, in order to be of use, take adequate account of those facts.

Mr Bouwman, a Dutch national, signed a lease with Mr Debaecker and his wife Berta Plouvier, both of Belgian nationality, by which he agreed from 15 October 1980 to rent business premises situated at 18 Frankrijklei, Antwerp, where he intended to run an art gallery. On Monday, 21 September 1981, Mr Bouwman left without giving notice or leaving a forwarding address. On Thursday, 24 September 1981, the Debaeckers' lawyer, Mr Debaecker, who according to the Commission is their son, applied to the Vrederechter [Cantonal Judge], Antwerp, for leave to serve a writ on Mr Bouwman at reduced notice, alleging inter alia that Mr Bouwman had left, taking with him all his movable property, ‘like a thief in the night’. The Vrederechter granted leave for Mr Bouwman to be summoned to appear at the sitting on Thursday, 1 October 1981, and a writ dated 24 September 1981 was served on the Politiecommissariaat, Antwerp, in accordance with Article 37 of the Gerechtelijk Wetboek [Belgian Judicial Code]. That course was followed because at the time of service the lawyer was not aware of Mr Bouwman's whereabouts. However, he assumed that Mr Bouwman still resided in Antwerp because he was registered there. The writ could not be served at his home address, 18 Frankrijklei, because neither he nor any member of his household was there.

On 25 September 1981 Mr Bouwman sent to the Debaeckers' lawyer a registered letter, in which he repudiated the lease, returned the keys and gave notice that he was to be reached ‘through post office box number 24, 2190 Essen’ (likewise in Belgium). That letter reached the Debaeckers' lawyer on 28 September 1981. He, however, took no action and therefore left Mr Bouwman unaware that a writ had been served on him at the Politiecommissariaat requiring him to appear before the Vrederechter on 1 October. On 1 October the Vrederechter gave judgment in default against Mr Bouwman, terminating the lease and awarding Mr and Mrs Debaecker compensation of BFR 1072900.

The Commission informed the Court that that judgment was itself served in the same way: as Mr Bouwman was not at his official place of residence in Frankrijklei, it was served at the Politiecommissariaat.

On 18 November the Registrar of the Vredegerecht, Antwerp, established that no appeal had been lodged against the judgment in default. On the same day Mr and Mrs Debaecker lodged an application with the President of the Arrondissementsrechtbank [District Court] in Breda (the Netherlands) for an order freezing Mr Bouwman's bank account in Breda. It was presumably at about that time that Mr Bouwman discovered that proceedings had been brought against him.

On 30 November the President of the Arrondissementsrechtbank, Breda, authorized the enforcement of the judgment of the Vrederechter. Mr Bouwman appealed against that decision to the Arrondissementsrechtbank, Breda, on 6 January 1982. On 12 October 1982 that court held that the appeal was well founded and dismissed the application for the issue of an order for enforcement.

Mr Bouwman based his appeal inter alia on Articles 20 and 27 of the Convention. The Arrondissementsrechtbank found that the claim based on Article 20 could not succeed because that article covered the situation in which a defendant residing in one Contracting State was sued in a court of another Contracting State. In this case, however, Mr Bouwman was sued before a court in the same State and city as that in which he had his residence under Belgian law and the writ did not even have to leave the City of Antwerp in order to be validly served.

As regards Article 27 (2), the Arrondissementsrechtbank found that it was not disputed that the document which instituted the proceedings had been duly served in accordance with Belgian law. However, Mr Bouwman contended that, in order to satisfy the requirement that service should be effected in sufficient time, it would have been necessary not only to effect formal service in the prescribed manner but, in addition, to serve the writ requiring him to appear before the Vrederechter on 1 October 1981 through his post office box number, which was known to the Debaeckers' lawyer from 28 September 1981.

In that connection, in accordance with the judgment of the Court in Case 166/80 (Klomps v Michel [1981] ECR 1593, at pp. 1608 and 1609), the Arrondissementsrechtbank considered ‘whether, in this particular case, there are exceptional circumstances which warrant the conclusion that, although service was duly effected, it was, however, inadequate for the purpose of causing the time needed for the defence to begin to run.’

On that question the Arrondissementsrechtbank considered:

‘Although the applicant must himself be regarded as responsible for the fact that throughout the course of these proceedings he has retained as his official residence an address at premises of which he no longer even has the keys, and he will in principle have to bear the consequences, the question whether the summons to appear before the Vrederechter on 1 October 1981 gave the applicant sufficient time to arrange for his defence must be determined according to the particular circumstances obtaining at that time. The court considers that service exclusively on the Politiecommissariaat, when the applicant was not found at his official residence, which he was known to have left, such service not being followed by notice of a different kind when before the sitting on 1 October 1981 the respondents became aware of how the applicant could be reached, was insufficient to cause the time for the defence to begin to run. It was in fact impossible for the applicant to enter any kind of defence. The judgment in default given by the Vrederechter, Antwerp, therefore cannot be recognized in the Netherlands.’

Mr and Mrs Debaecker appealed against that judgment to the Hoge Raad, on two grounds which may be summarized as follows. In the first place they claimed that Article 27 (2) was not applicable in this situation since service ‘was effected in accordance with a period specified by the adjudicating court and the defendant's sole residence was within the jurisdiction of that court or in the same country as that court’. Secondly, they argued that facts which occurred later — that is to say, after service of the document which instituted the proceedings — did not compel the plaintiff to take further steps to inform the defendants of the impending action, so that if steps were not taken the time required by Article 27 (2) did not begin to run.

The Hoge Raad submitted the following questions to the Court of Justice:

‘1. Is the requirement, laid down in Article 27 (2) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, that service of the document which instituted the proceedings should have been effected in sufficient time inapplicable if service was effected within a period prescribed by the court of the State in which the judgment was given and/or the defendant resided, exclusively or otherwise, within the jurisdiction of that court or in the same country as that court?

If Question 1 is answered in the negative:

2 (a) In relation to the question whether, in a particular case, there are exceptional circumstances which warrant the conclusion that, although due service was effected, as provided for in Article 27 (2), it was none the less inadequate for the purpose of causing the time required in that provision to begin to run, is account to be taken only of circumstances which existed at the time of service and which the plaintiff could take into consideration at that time?

If Question 2 (a) is answered in the negative :

2 (b) Can the plaintiff be required as a result of circumstances which arose after service was effected, in particular notification to the plaintiff of the defendant's address, to take further steps to inform the defendant of the impending action, so that if such steps are not taken the time required by Article 27 (2) does not begin to run?

If Question 2 (b) is answered in the affirmative :

2 (c) What criterion must be applied in that regard? In particular, does the fact that the defendant was responsible for the failure of the duly served document to reach him prevent the court, where, for example, the plaintiff was aware that the defendant had left the address stated to be his place of residence, from considering that further steps as referred to above were required?’

2. Protection of the defendant

Before discussing the questions referred to the Court, I consider it appropriate to make certain general remarks on the protection afforded to the defendant by Article 27 (2). That article forms part of Title III of the Convention, concerning ‘Recognition and Enforcement’ (Articles 25 to 49).

It should first be stated that the provision concerns a defendant against whom judgment has been given by default. The Convention makes special provision for judgments in default, owing to the drastic effects which they have.

The aim of the Convention, which is based on the assumption that the audi alteram partem principle will apply, is to achieve as far as possible the free movement of judgments. For that purpose, it is arranged in such a way as to provide, in Title II, for such safeguards in the original proceedings as to enable a judgment given in one State to be recognized in another State without any special procedure being required (Article 26), subject to an exhaustive list of exceptions set out in Articles 27 and 28.

One of the most important safeguards in the original proceedings is contained in Article 20, which concerns a judgment in default where a defendant domiciled in one Contracting State is sued in a court of another Contracting State. The second paragraph of Article 20 provides that the court is to ‘stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.’ It is clear from the third paragraph that the second paragraph constitutes a transitional provision pending the application of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. It seeks as far as possible to prevent judgment in default from being given against a defendant who is unaware of the proceedings, as is possible by virtue of the systems of fictitious service (such as the ‘remise au parquet’) which are accepted in most Contracting States other than Germany. ( 1 )

As the Arrondissementsrechtbank rightly remarked, that article is not applicable in this case. None the less, the fundamental principle of law to which it gives effect, namely the right to a fair hearing, is in my opinion of indirect significance for the interpretation of Article 27 (2), which is somewhat briefer on that point.

At the stage of the recognition of judgments, Article 27 provides for an exception, applicable to judgments in default, to the general scheme of the Convention, whereby judgments given in one Contracting State are recognized in the other Contracting States without any special procedure being required.

Where judgment is given abroad in default of appearance, the Convention affords the defendant double protection. ( 2 ) In the first place, the document must have been duly served. In that connection reference must be made to the domestic law of the State in which the judgment was given and to the international conventions on the service of judicial documents. Secondly, even where service was duly effected, recognition may 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 question of ‘sufficient time’ is a question of fact to be determined by the court. ( 3 ) The principle on which Articles 20 and 27 are based is described in legal writings in different ways, but the result is always the same. In France reference is made to ‘the rights of the defence’, ( 4 ) whilst German writings speak of the principle that the court should hear both sides. ( 5 )

It is, in my view, important to realize that the principle of procedural law in question is intended to afford protection in connection with an improper procedure, namely judgment in default given against a person who is unaware that proceedings are pending. ( 6 ) In that regard I also refer to my previous remarks on the indirect significance which I consider that the second paragraph of Article 20 may have for the interpretation of Article 27 (2).

From the judgment of the Court in Klomps v Michel, and in particular paragraphs 19 and 20, I infer that the mandatory examination of the question whether service was effected in sufficient time should also take into account the degree of care to be exercised by the parties. At least that is my understanding of the examples given by the Court of matters which may be taken into account, such as ‘the means employed for effecting service, the relations between the plaintiff and the defendant or the nature of the steps which had to be taken in order to prevent judgment from being given in default’. Droz, in a commentary on a French judgment concerning Article 27 (2), ‘ appears to share that view, stating inter alia that Article 27 (2) ( 7 )“moralise” les relations entre les parties en présence’.

The judgments of the Court on Article 27 (2) (Case 166/80 Klomps \Michel una Case 228/81 Pendy Plastic v Pluspunkt) may be summarized as follows:

— Article 27 (2) should be interpreted independently, as an autonomous provision of the Convention, notwithstanding the examination conducted by the adjudicating court under the second paragraph of Article 20;

— the aim of the requirement that service should have been effected in sufficient time is to ensure that the defendant's rights are effectively protected;

— in principle, that requirement is fulfilled where service was duly effected; however, the court should consider whether in a particular case, taking into account all the circumstances, there are exceptional reasons for considering that the requirement that service should be effected in sufficient time has not been fulfilled.

3. The questions submitted by the Hoge Raad

3.1. The first question. The first question asked by the Hoge Raad asks whether the requirement laid down in Article 27 (2) that service should be effected in sufficient time is inapplicable if service was effected within a period prescribed by the court of the State in which the judgment was given and/or the defendant resided in the same country as that court. Mr and Mrs Debaecker's lawyer raised that ground of appeal because he considered that the Court of Justice had not yet given an express ruling on that point. Although the Hoge Raad had referred to that possibility in its fourth question referred to the Court in Klomps v Michel, the Court did not expressly rule on that part of the question. In my view, however, the Court in that case implicitly decided that Article 27 (2) is applicable in a case such as that described by the Hoge Raad. Thus it may be noted that that case, as the United Kingdom has rightly recalled in its written observations in this case, was concerned with a judgment in default obtained in Germany following service in Germany on a defendant who, under German law, was resident in Germany. The judgment of the Court in no way implies that Article 27 is not applicable in that situation. On the contrary, it seems to me that the place of residence is of no relevance to the requirement that service should be effected in sufficient time. In the judgment in Klomps v Michel the Court held that Article 27 (2) laid down two conditions: (i) that service should be duly effected and (ii) that service should be effected in sufficient time to enable the defendant to arrange for his defence. The second condition requires the court to make appraisals of a factual nature which are independent of the examination as to whether there was due service (paragraph 15). In connection with the fifth question referred to the Court in that case, asking whether the question of service in sufficient time would be answered differently if the court in which enforcement was sought were to find that the defendant had his residence in that State, the Court stated that the residence was irrelevant since the question whether service was effected in sufficient time was a question of fact (paragraph 23). That is consistent with the remarks made by Mr Advocate General Reischl in his opinion in that case, with which I entirely concur. He based his view on an interpretation of the wording of the provision in question. Article 27 (2) is widely formulated and its application is not restricted by any reference to residence. It is therefore applicable to all interested parties irrespective of their residence. ( 8 ) In that respect it differs from the second paragraph of Article 20 which applies only to a defendant resident in one Contracting State who is sued in a court of another Contracting State. As Mr Advocate General Reischl stated in his opinion, having referred to the relevant legal writings, ( 9 ) Article 27 (2) applies whenever a writ served within national territory leads to a judgment in default which the plaintiff then seeks to enforce abroad. As Weser has stated, the application of Article 27 (2) is justified because national law alone will not necessarily provide the safeguards laid down in Article 20 of the Convention. Differences in the rules on service in the Contracting States, permitting fictitious service to a greater or a lesser extent, should be given particular consideration here. In that connection it may also be pointed out, as Droz observed in the commentary which I referred to earlier, that in purely national proceedings the disadvantages of the rules on fictitious service may be avoided by the possibility of contesting or appealing against a judgment, whereas the position is different in a case with an international dimension. Viewed in that light, Article 27 (2) affords a welcome safeguard for the protection of the interests of the defendant where a judgment in default is to be recognized abroad. Finally, the Court ruled in Pendy Plastic that the examination which Article 27 (2) requires the enforcing court to undertake is independent of the decision taken on that point by the adjudicating court. In conclusion, Article 27 (2) must in my view be regarded as applicable in a case such as that referred to by the Hoge Raad in its first question.

3.2. Question 2 (a) asks the Court whether, in determining whether there are exceptional circumstances which warrant the conclusion that, although due service was effected, it was none the less inadequate for the purpose of enabling the defendant to arrange for his defence and consequently causing the time required in Article 27 (2) to begin to run, account is to be taken only of circumstances which existed at the time of service and which the plaintiff could take into consideration at that time. As regards the answer to that question, the Court has been presented with the entire range of possibilities. Mr and Mrs Debaecker contend that the question should be answered in the affirmative, so that account should be taken only of circumstances which existed at the time of service. On the other hand, Mr Bouwman and the German and United Kingdom Governments consider that, in determining whether the requirement as to sufficient time has been fulfilled, account may also be taken of circumstances which arose after service was effected. The Commission adopts an intermediary position, stating that although in principle only circumstances which existed at the time of service may be taken into account, an exception may in its view be made for highly exceptional circumstances for which the defendant cannot be blamed. ( 10 ) Mr and Mrs Debaecker's contention that it is impossible at the time of service to take account of circumstances which only become apparent later is, in itself, correct so far as actual service is concerned. However, according to the judgment of the Court in Klomps v Michel, the court in which enforcement is sought must consider two separate questions, namely whether service was duly effected and whether it was effected in sufficient time. Mr and Mrs Debaecker do not consider the second question. Mr Bouwman and the German and United Kingdom Governments base their observations, in my view rightly, on the judgment in Klomps v Michel. There the Court stated that, in view of the national laws and international provisions which also have as their objective the safeguarding of the interests of the defendant, the court in which enforcement is sought is ordinarily justified in considering that, if due service is established, the requirement that service should have been effected in sufficient time is fulfilled. None the less the court must consider whether, in a particular case, there are exceptional circumstances which warrant the conclusion that that requirement is not fulfilled (paragraph 19). In reaching its decision the court may take account of all the circumstances of the case, including the means employed for effecting service, the relations between the plaintiff and thedefendant or the nature of the steps which had to be taken in order to prevent judgment from being given in default (paragraph 20). It cannot, in my view, be inferred from that that the Court sought to restrict the examination undertaken by the national court to circumstances which were known at the time of service; otherwise there would be a risk of interpreting the requirement as to sufficient time in such a restrictive and formalistic manner that it would in practice coincide with the requirement that service should be duly effected. I consider it important that the Court stated that the court in which enforcement is sought may take account of all the circumstances of the case. As the United Kingdom Government has rightly observed, one of the circumstances given by the Court as an example, namely the steps which the defendant would have needed to take in order to prevent judgment from being given in default, necessarily arises after service has been effected (paragraph 20). Further support is found in the Court's remark that an appraisal of the facts is required (paragraph 15). From that I infer that it may appear from the whole of the facts that, although service was duly effected, it was none the less inadequate for the purposes of enabling the defendant to prepare his defence or to take the necessary steps to prevent judgment from being given in default (summarizing the criteria laid down in paragraphs 19 and 20). It is not acceptable, in the light of the purpose of the requirement that service should be effected in sufficient time, to confine the facts which the national court must appraise to those existing at the time of service. Since it is to appraise the effectiveness of service, the court should also examine the subsequent period. By analogy with paragraph 20 of the Court's judgment in Klomps v Michel, the Court could mention in its judgment in this case, among other circumstances which the national court may take into account, the extent to which the defendant is himself to blame for his not being able to defend himself, the date of service and the particular way in which it was effected, the nature and timing of the steps which the defendant took, after leaving his official residence without stating his destination, in order to inform the other party to the contract (the plaintiff) of his new address, and the way in which the plaintiff reacted to those steps. Those factors elaborated by analogy with the examples given in paragraph 20 also take account of the circumstances which, as already stated, the Arrondissementsrechtbank, Breda, regarded as important in this case. I wish now briefly to consider the Commission's proposed reply to this question. It regards the facts known at the time of service as decisive, on the basis of a number of arguments such as legal certainty, the need to interpret Article 27 (2) restrictively and the safeguards afforded by the national rules in relation to the service of documents. The Commission considers, however, that there may be an exception to the general rule in the case of highly exceptional circumstances which cannot be considered to be the defendant's fault. In the list of examples recited in footnote 10, which was submitted by the Commission at the hearing, it adopted a much less restrictive view than that put forward in its written observations, where it mentioned only circumstances in the nature of force majeure, such as an accident caused by a third party or a general strike. I would again emphasize that, according to the judgments of the Court, Article 27 (2) should be interpreted as an independent provision. The safeguards afforded by national procedural law do not prevent the court in which enforcement is sought from reaching, on the basis of the facts, a different view on the requirement laid down in Article 27 (2) that service should be effected in sufficient time. An identical view to that put forward by the Commission in its written observations was, in my view, rejected by the Court in paragraph 19 of the judgment in Klomps v Michel. Moreover, I infer from the judgments of the Court that Article 27 (2) should not be interpreted as restrictively as the Commission maintains in this case. In that regard I refer to the judgment in Case 125/79 (Denilauler vCoHchet Frères [1980] ECR 1553), in which the Court ruled that certain ex parte proceedings do not fall within Title III of the Convention, and to the judgments in Klomps v Michel and Pendy Plastic v Pluspunkt. The nature of the exceptional circumstances which the Commission, in particular in its written observations, suggests may be taken into account after service is, in my view, too restricted. The court in which enforcement is sought may certainly take account of those matters, but more in the sense that, in weighing up the particular facts, it will give more weight to those matters than to others, in the light of the purpose of the requirement laid down in Article 27 (2) that service should be effected in sufficient time. In conclusion, I consider that the answer to Question 2 (a) should be that the court in which enforcement is sought may, in examining whether the requirement as to sufficient time is fulfilled, take account of all the circumstances which are relevant to the exercise of the right to a fair hearing, even those which arose after service was effected.

3.3. Question 2 (b) asks whether the plaintiff can be required as a result of circumstances which arose after service was effected, in particular notification to the plaintiff of the defendant's address, to take further steps to inform the defendant of the impending action, so that if such steps are not taken the time required by Article 27 (2) does not begin to run. Mr and Mrs Debaecker and the Commission consider that, since no such obligation is laid down in the Convention or expressly in the national law of the adjudicating court, an affirmative answer to that question would be inconsistent with the need for legal certainty. They take the view that such conduct can be demanded more as a rule of etiquette than as a rule of law. On the other hand, Mr Bouwman and the German and United Kingdom Governments infer from the purpose of the requirement of service in sufficient time that such an obligation does exist. I endorse that view. As I have already observed, the requirement in question should be interpreted as an independent provision of the Convention and is thus not governed by the lex fori of the original State or of the State in which enforcement is sought, as Mr Advocate General Reischl stated in Klomps v Michel (at p. 1619, right-hand column). ( 11 ) It should be borne in mind that the provision in question requires an appraisal of the effectiveness of service, for the protection of the defendant in the case of a judgment in default, in order to ensure that his rights are effectively protected and to prevent his being taken unawares by a judgment in default. The Court's statement in Klomps v Michel that service is not always adequate for the purposes of enabling the defendant to take steps to arrange for his defence implies that it may not be enough for the plaintiff duly to effect service. The very purpose of Article 27 (2) is to lay down the principle that, in addition to formal service, the defendant's rights must be protected. Consequently the plaintiff must as far as possible take account of the defendant's actual situation, in order to give him an opportunity of defending himself. According to the Court's judgment in Klomps v Michel, the document which instituted the proceedings need not actually be brought to the knowledge of the defendant. The position is somewhat different, however, where it is clear from the facts of the case that the plaintiff must have known that the defendant had no knowledge of the writ and was therefore unable to arrange for his defence. That applies particularly where the defendant, after service of a writ which he has not received, informs the plaintiff of a new address, albeit only a post box number, in a different area. Otherwise, it would be possible for a judgment in default to be sprung upon the defendant, even though the plaintiff knew where the defendant was to be reached. In that situation the fact that after service the plaintiff is apprised of a new address may, in my view, oblige him to take further steps to inform the defendant even at that stage of the forthcoming action, in order to give him an opportunity of arranging for his defence. As I have already observed, the national law of the adjudicating court is irrelevant here. It is not, as the Commission has maintained, a mere question of etiquette. Admittedly, it is clear from the instructive information annexed to the Commission's written observations that in most Member States it is in fact considered proper for the defendant to be informed even at that stage of the imminent action. However, since the requirement laid down in Article 27 (2) that service should be effected in sufficient time is not purely formal, but rather involves a question of fact — namely, whether service made it possible for the defendant to arrange for his defence — it may in principle be considered to entail a legal obligation to provide further information in such a case. Whether failure to comply with that obligation necessarily means that the time stipulated by the requirement in question does not begin to run is a separate question and one which may in my view be difficult to answer in general terms, since that is merely one of the circumstances which may be taken into account. It seems to me that the correct reply is that it may prevent time from running but does not necessarily do so, since that will depend upon all the circumstances of the case which are relevant to the exercise of the right to a fair hearing.

3.4. In Question 2 (c) the Hoge Raad asks the Court whether, if the defendant is responsible for the failure of the document to reach him, the plaintiff does not have to inform him if, after service is effected, he discovers where the defendant is to be reached. This question concerns the conduct of the parties to the case. The starting point is that the principle that the defendant's rights should be protected must be given full effect. Breaches of that principle may be committed by either party. It is ultimately the court which must determine, on the basis of all the circumstances, the conduct which was chiefly responsible for the defendant's failure to enter an appearance and which therefore resulted in judgment being given in default. I have already emphasized that the plaintiff should as far as possible take account of the defendant's actual situation. But the defendant may also be expected to cooperate as far as possible in order to prevent judgment from being given in default. As I observed in my introduction, the principle that the defendant's rights must be protected, in my view, presupposes that both parties should exercise care in the conduct of the case. It is for that reason that I have set out the facts in such detail. That means that even if the defendant is himself to blame for the fact that the duly effected service was inadequate for the purpose of enabling him to arrange for his defence in time, the court may also, in examining whether service was effected in sufficient time, consider any breaches of procedural requirements on the part of the plaintiff. It is clear from the judgment of the Arrondissementsrechtbank that that court did in fact consider all the aspects of the case and weighed up the extent to which the parties were to blame. It regarded as decisive, however, the fact that in practice it was impossible for the defendant to enter any defence, whereas the plaintiffs became aware in advance of the hearing before the Vrederechter of how the defendant could be reached and informed of the imminent action. That seems to me to be entirely consistent with the principle under Article 27 (2) that the defendant's rights should be protected.

4. Conclusion

In conclusion I propose that the questions submitted to the Court by the Hoge Raad should be answered as follows:

1. The court in which enforcement is sought must examine the question of compliance with the requirement, laid down in Article 27 (2) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, that service of the document which instituted the proceedings should have been effected in sufficient time even if service was effected within a period prescribed by the court of the State in which the judgment was given and the defendant resided, exclusively or otherwise, within the jurisdiction of that court.

2 (a) In examining whether the abovementioned requirement is fulfilled, account may be taken of exceptional circumstances which arose after service was duly effected.

2 (b) Circumstances which arose after service was effected, such as notification to the plaintiff of the defendant's address, may oblige the plaintiff to take further steps to inform the defendant of the impending action. In determining whether the plaintiff's breach of that obligation means that the time required by Article 27 (2) does not begin to run, the court should take account of all the circumstances of the case which are relevant to the defendant's exercise of his right to defend himself.

2 (c) Blameworthy conduct on the part of the defendant, as a result of which a duly served document failed to reach him, does not prevent the court, in taking account of all the circumstances of the case, from deciding that further steps were needed to inform the defendant of the impending action.

( *1 ) Translated from the Dutch.

( 1 ) Jenard Report, Official Journal 1979, C 59, pp. 39-41; Droz, Compétence judiciaire et effets des jugements dans le marché commun, Ì972, paragraphs 261-286; Billow and Böckstiegel, Internationaler Rechtsverkehr in Zivil- und Handelssachen, Art. 20 IV 1, No 606; Kropholler, Europäisches Zivilprozeßrecht, 1982 p. 153.

( 2 ) Jenard Report, p. 44.

( 3 ) Jenard Report, p. 40; Case 166/80 Klomps v Michel, cited above; Case 228/81 Pendy Plastic, cited above.

( 4 ) Jenard Report, p. 44; Droz, paragraphs 258 et seq.; Weser, Convention sur la compétence judiciaire et l'exécution des décisions, paragraphs 275 et seq.

( 5 ) Billow and Bbckstiegel, Article 27 III, No 606; Kropholler, p. 198 et seq.

( 6 ) Lemaire, ‘Wat brengen de Europese geunificeerde regels betreffende de internationale rechtsbedeling’, Weekblad voor Privaatrecht, Notarisambt en Registratie, No 5180, pp. 413-416.

( 7 ) Tribunal de grande instance, Paris, 6 January 1982: Cour d'Appel, Paris, 4 January 1983, Revue critique 1984, p. 134 et leq.; sec also Lemaire, p. 413, on Article 20, second paragraph.

( 8 ) See also Droz, paragraphs 500-508; BUlow and Böckstiegel Article 27 III 2, No 606.

( 9 ) Weser, p. 332; Kropholler, p. 198, paragraph 16.

( 10 ) For the benefit of legal practitioners I consider it important to mention in this connection the detailed, though not exhaustive, list of such highly exceptional circumstances to which the Commission referred at the hearing. That list contains the following examples:

— Persons having two or more addresses, as was the case in Klomps v Michel;

— businessmen who are travelling abroad;

— persons on holiday;

— fishermen on the high seas;

— a person who unexpectedly has to go to hospital following an accident (which is very exceptional);

— persons who move house and register in another area, as was the case in Pendy Plastic;

— persons who temporarily leave their place of residence;

— persons who definitively leave their place of residence without informing the authorities and without sending a letter to the other party: in other words, the plaintiff knows only that the defendant has gone away but docs not know where he is;

— a variant of that case, where later on, after service has been effected, the defendant says where he may be found but in so doing takes the responsibility on himself for the fact that process is served on him at his former address;

— persons who leave their place of residence, inform the authorities, and write in time to the other party to tell him where they have gone to: in other words, the plaintiff knows in advance where the defendant is to be found (in the Commission's view, a very special situation);

— private persons who are not businessmen and therefore could perhaps enjoy further protection; (this may, in the Commission's view, represent a highly exceptional circumstance);

and finally

— persons who are prevented from entering a defence by extraneous circumstances for which they cannot be held responsible, such as: — an accident (caused by somebody else); — a general postal strike; — a very special reason for leaving the premises (for example, to look after a sick member of the family, fire, and so on); these type of facts could be considered to be very unusual.

( 11 ) See also Bülow and Böckstiegel, No 606, Article 27 III 4 (b).