3.

The Hoge Raad also wishes to know whether, if it is accepted that the order for payment constitutes the document which instituted the proceedings, as regards the question whether service was effected on the defendant in sufficient time to enable him to arrange for his defence, account is to be taken only of the period within which the objection to the order for payment may be made or also of the further period within which the objection to the enforcement order may be lodged. In the view of the respondent in the main action the answer to that question is that account should also be taken of the period allowed for objecting to the enforcement order. In this connection it is pointed out that, after the objection has been lodged it is possible to put forward a full defence against the claim. In addition it is noted that the execution of an enforcement order which is provisionally enforceable is usually carried out with some hesitation as there may be a claim for damages if an objection is successful and after the submission of an objection the debtor may have the execution stayed. The Commission's view corresponds very closely to these conclusions. The Commission considers it important that an objection, made out of time, to an order for payment is treated as an objection to the enforcement order and that, as it were, through the latter objection the former can be restored. Following on from this, the Commission, too, refers to the possibility of putting forward a comprehensive defence after lodging an objection against the enforcement order, in which case detailed grounds of defence do not have to be lodged at the same time as the objection but, as a rule, only within a period which is subsequently fixed. However, if I have properly understood the Commission's arguments in the oral procedure, it apparently considers such a ar-reaching proposition as applicable only where the circumstances of a particular case are as follows: when an enforcement order is not immediately executed and when it is clear, at the time of the proceedings for recognition, that no objection against the enforcement order has been lodged within the prescribed time-limit. The Government of the Federal Republic of Germany has on the other hand clearly opposed, at least in its written observations, taking into account the time for lodging an objection against the enforcement order. In this connection it is significant that the enforcement order provides the same authority for enforcement as a judgment in default. The protective purpose of Article 27 of the Convention on Jurisdiction requires however that it should be possible to put forward a defence before the authority for enforcement is issued, that is to say, that between service of the document which instituted the proceedings, in this case the order for payment, and the decision taken on the basis of it, there must be sufficient time to arrange for the defence. In this matter I am in principle disposed to share the Federal Government's view, which, on the basis of the general scheme of the Convention on Jurisdiction and the objective of Article 27, clearly has very weighty arguments in its favour. In addition it should not be forgotten that, according to Article 46 of the Convention on Jurisdiction, a party applying for enforcement is required to produce, in the case of a judgment in default, the original or a certified copy of the document which establishes that the party in default was served with the document which instituted the proceedings. Accordingly, it ought to be clear that the last-mentioned document must be different from the one which constitutes the actual basis for enforcement. Since in the summary proceedings for recovery of a debt or liquidated demand the document which instituted the proceedings is the order for payment, what is important is what time remained after service of that order for preparing the defence. In that connection it is of course necessary to take into account a number of factors in ascertaining whether this period is reasonable. What is concerned is not a strict exclusionary time-limit. On the contrary, it was possible for an objection to the order for payment to be made until the enforcement order was issued, which, owing to the volume of work, was often not done until some considerable time had elapsed, in this case six days after the issue of the order for payment. It is also important that during that time the debtor is simply required to make it known that he does not admit the claim. That may be done without giving reasons and without observing any requirements as to form; for example, it may be done orally in the presence of the appropriate officer at the court registry or, as the representative of the Federal Government has informed the Court, by telephone or telegram and a representative is not in this connection required to establish his authority to act in the matter. In view of the fact that submission of the objection to the order for payment transforms the procedure into a legal action properly so-called there is sufficient time afterwards for detailed preparation of the defence which usually requires to be lodged before or at a hearing, the date of which is subsequently fixed. Nevertheless I should like to add that the views of the Commission are not to be dismissed out of hand. For the Commission what is important is that, in interpreting the Convention on Jurisdiction, the primary consideration should be its objective — the requirement of the free movement of judgments. On this basis, and also in view of the fact that Title II of the Convention on Jurisdiction already provides guarantees for the procedure to be followed before the court first seised and that in principle recognition is granted without any special procedure a restrictive application of the provisions of Articles 27 and 28 is appropriate. If this view is accepted it may in fact appear arguable that, in a case such as this, in which the enforcement order was served on 22 April 1976 and in which, during the procedure for recognition in 1978, it became clear that the time for lodging an objection to the enforcement order had expired without being used for that purpose, in answering the question whether the debtor had sufficient time to defend the claim made against him the time for lodging an objection to the enforcement order should also be taken into account. This would give twenty-five days in all for the defence.