ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS).
Date: 2006-12-14
16. In that regard, it must be observed first of all that the wording of Article 34(2) of Regulation No 44/2001 does not, in itself, enable an answer to be given to the questions raised.
20. By contrast, Article 34(2) of Regulation No 44/2001 does not necessarily require the document which instituted the proceedings to be duly served, but does require that the rights of defence are effectively respected.
21. Finally, Article 34(2) provides an exception to ground for refusal of recognition or enforcement of a judgment, that is to say, in the case where the defendant has failed to commence proceedings to challenge the judgment when it was possible for him to do so.
22. Therefore, Article 34(2) of Regulation No 44/2001 must be interpreted in the light of the objectives and the scheme of that regulation.
23. First, as regards the objectives of that regulation, it is clear from the 2nd, 6th, 16th and 17th recitals in the preamble that it seeks to ensure the free movement of judgments from Member States in civil and commercial matters by simplifying the formalities with a view to their rapid and simple recognition and enforcement.
24. However, that objective cannot be attained by undermining in any way the right to a fair hearing (see, in particular, Case 49/84 Debaecker and Plouvier  [1985] ECR 1779, paragraph 10, Case C-522/03 Scania Finance France  [2005] ECR I-8639, paragraph 15, and Case C-3/05 Verdoliva  [2006] ECR I-1579, paragraph 26).
26. According to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures (see, in particular, Opinion of the Court 2/94 [1996] ECR I‑1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) has special significance (see, in particular, Case 222/84 Johnston  [1986] ECR 1651, paragraph 18, and Case C-7/98 Krombach  [2000] ECR I-1935, paragraph 25).
28. As the Advocate General has pointed out, in point 105 of his Opinion, the European Court of Human Rights also held, albeit in a criminal case, that the defendant’s lack of awareness of the grounds of the judgment of an appeal court within the period allowed for bringing an appeal against that judgment before the court of cassation constituted an infringement of the combined provisions of Article 6(1) and (3) of the ECHR, because the person concerned had been unable to bring an appropriate and effective appeal (see Eur. Court H.R. judgment in Hadjianastassiou  v Greece of 16 December 1992, Series A. No 252, § 29 to 37).
29. Second, in relation to the scheme established by Regulation No 44/2001 as regards recognition and enforcement, it must be observed, as the Advocate General has done in point 112 of his Opinion, that the observance of the rights of defence of a defendant in default of appearance is ensured by a double review.
30. In the original proceedings in the State in which the judgment was given, it follows from the combined application of Articles 26(2) of Regulation No 44/2001 and Article 19(1) of Regulation No 1348/2000, that the court hearing the case must stay the proceedings so long as it is not shown that the defendant has been able to receive the document which instituted the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.
31. If, during recognition and enforcement proceedings in the State in which enforcement is sought, the defendant commences proceedings against a declaration of enforceability issued in the State in which the judgment was given, the court hearing the action may find it necessary to examine a ground for non-recognition or enforcement, such as that referred to in Article 34(2) of Regulation No 44/2001.
39. Article 34(2) of Regulation No 44/2001 does not mean, however, that the defendant is required to take additional steps going beyond normal diligence in the defence of his rights, such as those consisting in becoming acquainted with the contents of a judgment delivered in another Member State.
40. Consequently, in order to justify the conclusion that it was possible for a defendant to commence proceedings to challenge a default judgment against him, within the meaning of Article 34(2) of Regulation No 44/2001, he must have been aware of the contents of that decision, which presupposes that it was served on him.